ORDER OF THE VICE-PRESIDENT OF THE COURT
29 September 2023 (*)
(Interim relief – Articles 278 and 279 TFEU – Appeal – Application for suspension of operation and other interim measures – Article 160(7) of the Rules of Procedure of the Court of Justice – Restrictive measures taken having regard to the situation in Ukraine – Freezing of funds and economic resources)
In Case C‑585/23 P(R)-R,
APPLICATION for suspension of operation and other interim measures under Articles 278 and 279 TFEU, brought on 22 September 2023,
Council of the European Union, represented by P. Mahnič, R. Meyer and J. Rurarz, acting as Agents,
appellant,
the other parties to the proceedings being:
Nikita Dmitrievich Mazepin,
applicant at first instance,
Republic of Latvia,
intervener at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1 By its application for interim measures, the Council of the European Union requests that the Court of Justice, pursuant to Articles 278 and 279 TFEU and Article 160(7) of the Rules of Procedure of the Court of Justice, suspend the effects of the order of the President of the General Court of the European Union of 19 September 2023, Mazepin v Council (T‑743/22 RIII, ‘the order under appeal’), by which the General Court, first, ordered a number of interim measures and, second, cancelled the order of the President of the General Court of 7 September 2023 in Mazepin v Council (T‑743/22 RIII).
2 That application was brought in parallel with an appeal lodged by the Council on 22 September 2023, pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, seeking to have the order under appeal set aside.
3 Under Article 160(7) of the Rules of Procedure of the Court of Justice, which is applicable to the procedure on appeal pursuant to Article 190(1) of those rules, the judge hearing an application for interim measures may grant that application even before the observations of the opposite party have been submitted, and that decision may be varied or cancelled even without any application being brought by any party.
4 It is apparent from the case-law of the Court of Justice that Article 160(7) of the Rules of Procedure of the Court permits the judge hearing an application for interim measures to adopt such measures, as a precaution, either until an order has been made terminating those interlocutory proceedings or until the main proceedings are terminated, if this should take place first, where ordering those measures is in the interests of the proper administration of justice, in particular with a view to ensuring the effectiveness of the procedure for interim relief (order of the Vice-President of the Court of Justice of 27 July 2023, VC v EU-OSHA, C‑456/23 P(R)‑R, EU:C:2023:612, paragraph 4 and the case-law cited).
5 When assessing the need for such an order, the judge hearing the application for interim measures must examine the circumstances of the specific case at hand (orders of the Vice-President of the Court of Justice of 4 October 2017, Wall Street Systems UK v ECB, C‑576/17 P(R)-R, EU:C:2017:735, paragraph 5, and of 22 July 2022, Telefónica de España v Commission, C‑478/22 P(R)-R, EU:C:2022:598, paragraph 5).
6 In the present case, it is apparent from the documents in the file that Mr Nikita Dmitrievich Mazepin was added and then maintained by the Council on the list of persons, entities and bodies subject to restrictive measures set out in the annex to Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16), and on the list of natural and legal persons, entities and bodies set out in Annex I to Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6).
7 Mr Mazepin brought an action for annulment of the Council’s measures maintaining him on those lists. He subsequently modified that action, so that it also seeks the annulment of new measures having the same effect. By orders of 1 March 2023, Mazepin v Council (T‑743/22 R, EU:T:2023:102), and of 19 July 2023, Mazepin v Council (T‑743/22 RII, EU:T:2023:406), the President of the General Court granted two successive applications for interim measures brought by Mr Mazepin and ordered, in part, the suspension of operation of the Council’s measures covered by that action.
8 By a separate document lodged at the Registry of the General Court on 7 September 2023, Mr Mazepin brought a third application for interim measures.
9 By order of 7 September 2023, Mazepin v Council (T‑743/22 RIII), adopted under Article 157(2) of the Rules of Procedure of the General Court, the President of the General Court granted that third application for interim measures.
10 On 14 September 2023, Mr Mazepin brought an application, pursuant to Article 164 of the Rules of Procedure of the General Court, for rectification of that order.
11 By the order under appeal, the President of the General Court, on the basis of Article 157(2) of the Rules of Procedure of the General Court, in essence, ordered:
– in point 1 of the operative part of that order, the suspension of operation of Mr Mazepin’s announced ‘re-listing’ by making that suspension subject to certain conditions;
– in point 2 of the operative part, the publication in the Official Journal of the European Union of a note clearly indicating that the announced ‘re-listing’ is subject to suspension;
– in point 3 of the operative part, the Council to take the necessary measures to ensure that the Member States comply fully and effectively with the order of the President of the General Court of 19 July 2023, Mazepin v Council (T‑743/22 RII, EU:T:2023:406), and, in particular, to ensure that the visa issued to Mr Mazepin on 7 August 2023 or any other visa which might become necessary covers at least the territory of the Schengen Member States and remains valid for the time necessary to allow Mr Mazepin to exercise effectively the rights granted by that order; and
– in point 4 of the operative part, the Council to inform the President of the General Court of the measures adopted.
12 In addition, in point 5 of the operative part of the order under appeal, the President of the General Court cancelled his order of 7 September 2023 in Mazepin v Council (T‑743/22 RIII).
13 In the Council’s submission, the Court of Justice should grant the present application for interim measures and suspend the effects of the order under appeal in order to avoid serious and irreparable harm.
14 In that regard, the Council submits, in particular, that, if the effects of the order under appeal are not suspended, it will be obliged immediately to take the decisions to comply with the interim measures set out in the operative part of that order. Thus, those interim measures will take effect before the application for interim measures or the appeal is examined by the Court of Justice, with the result that they will largely be deprived of their effectiveness. Moreover, the adoption of those decisions, some of which do not fall within the Council’s competence, would be such as to undermine the credibility of the Council’s actions in the area of the common foreign and security policy and seriously harm its reputation.
15 In the present case, it should be noted, first, that the order of the President of the General Court of 7 September 2023, Mazepin v Council (T‑743/22 RIII), ordered interim measures which appear to be broadly similar, in essence, to those ordered by the order under appeal. That order of 7 September 2023 was set aside in its entirety by the order of the Vice-President of the Court of Justice of 28 September 2023, Mazepin v Council (C‑564/23 P(R)), on the ground that the interim measures which it ordered exceeded the jurisdiction of the judge hearing the application for interim measures.
16 Second, it cannot be ruled out, in the light of the evidence put forward by the Council, that the full application of the order under appeal would be likely to cause it serious and irreparable harm before the date on which the Court is due to adopt either the order terminating the present interlocutory proceedings or ruling on the appeal in Case C‑585/23 P(R).
17 That said, the application of point 4 of the operative part of the order under appeal, which merely requires the Council to inform the President of the General Court of the measures adopted, is not, as such, capable of causing such harm to the Council.
18 Furthermore, in so far as the order of the President of the General Court of 7 September 2023, Mazepin v Council (T‑743/22 RIII), was set aside by the order of the Vice-President of the Court of Justice of 28 September 2023, Mazepin v Council (C‑564/23 P(R)), paragraph 5 of the order under appeal is not capable of altering the legal position of the parties before the date referred to in paragraph 16 above.
19 Consequently, it is in the interests of the proper administration of justice, even before the opposite party has submitted his observations, to order the suspension of operation of points 1 to 3 of the operative part of the order under appeal until the adoption of the order terminating the present interlocutory proceedings or ruling on the appeal in Case C‑585/23 P(R), whichever is the earlier.
On those grounds, the Vice-President of the Court of Justice hereby orders:
1. The operation of points 1 to 3 of the operative part of the order of the President of the General Court of the European Union of 19 September 2023, Mazepin v Council (T‑743/22 RIII), is suspended until the adoption of the order terminating the present interlocutory proceedings or ruling on the appeal in Case C‑585/23 P(R), whichever is the earlier.
2. The costs are reserved.
Luxembourg, 29 September 2023.
A. Calot Escobar | | L. Bay Larsen |