ORDER OF THE PRESIDENT OF THE GENERAL COURT
27 March 2023 (*)
(Interim relief – Common foreign and security policy – Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine – Prohibition on purchasing, importing or transferring, directly or indirectly, goods which generate significant revenues for Russia into the Union – Application for suspension of operation – Disregard of the procedural requirements – Inadmissibility)
In Case T‑782/22 R,
Cogebi, established in Beersel (Belgium),
Cogebi, a.s., established in Tábor (Czech Republic),
represented by H. over de Linden, lawyer,
applicants,
v
Council of the European Union, represented by M. Bishop and E. Nadbath, acting as Agents,
defendant,
supported by
European Commission, represented by J.-F. Brakeland, M. Carpus Carcea and L. Puccio, acting as Agents,
intervener,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 By their application based on Articles 278 and 279 TFEU, the applicants, Cogebi and Cogebi, a.s., seek suspension of the operation of Annex VI to Council Regulation (EU) 2022/1904 of 6 October 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 259 I, p. 3), in so far as it amends Annex XXI to Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1), by inserting CN code 6814 into the list of goods and technology referred to in Article 3i of Regulation No 833/2014 (‘the contested regulation’).
Background to the dispute and forms of order sought by the parties
2 The applicants carry out their main economic activity in the field of the manufacture of industrial products based on mica and resistant to high voltages and high temperatures.
3 On 31 July 2014, the Council of the European Union adopted Regulation No 833/2014, which gives effect to certain measures provided for in Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 13).
4 On 6 October 2022, the Council adopted, in response to the Russian Federation’s further aggression against Ukraine, to the organisation of illegal sham ‘referenda’ in the parts of the Donetsk, Kherson, Luhansk and Zaporizhzhia regions that are currently illegally occupied by the Russian Federation, to the illegal annexation of those Ukrainian regions by the Russian Federation, as well as to the mobilisation in the Russian Federation and its repeated threat to use weapons of mass destruction, Decision (CFSP) 2022/1909 amending Decision 2014/512 (OJ 2022 L 259 I, p. 122).
5 On the same date, the Council adopted the contested regulation, implementing Decision 2022/1909, by which Annex XXI to Regulation No 833/2014 was replaced by a new annex laying down a more detailed list of the goods the import of which is prohibited, in accordance with Article 3i(1) of the said regulation. In that new annex, it introduced a prohibition on the import into the European Union of goods falling under CN code 6814, namely, worked mica and articles of mica.
6 By application lodged at the Registry of the General Court on 13 December 2022, the applicants brought an action for annulment of the contested regulation, in so far as it includes CN code 6814 in the list of goods and technology set out in Annex XXI and referred to in Article 3i of Regulation No 833/2014.
7 By separate document lodged at the Court Registry on 13 January 2023, the applicants brought the present application for interim measures, in which they claim that the President of the General Court should:
– suspend operation of the contested regulation in so far as it includes CN code 6814 in the list of goods and technology set out in Annex XXI and referred to in Article 3i of Regulation No 833/2014;
– order the Council to pay the costs.
8 In its observations on the application for interim measures, lodged at the Court Registry on 27 January 2023, the Council, supported by the European Commission, contends that the President of the General Court should:
– dismiss the application for interim measures as inadmissible or, in the alternative, as manifestly unfounded;
– order the applicants to pay the costs.
Law
9 In accordance with Articles 278 and 279 TFEU read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that operation of a measure challenged before the Court be suspended or prescribe any necessary interim measures, having regard to the rules of admissibility laid down in Article 156 of the Rules of Procedure of the General Court.
10 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are 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’.
11 The judge hearing an application for interim measures may order suspension of operation of an act and 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, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim measures is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
12 Furthermore, under Article 156(5), and Article 76(d) of the Rules of Procedure, an application for interim measures must, in particular, be made by a separate document, indicate the subject matter of the proceedings and contain a summary of the pleas in law and arguments relied on.
13 It follows from a combined reading of Article 156(5) and Article 76(d) of the Rules of Procedure that an application for interim measures must be sufficient in itself to enable the defendant to prepare its defence and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out coherently and comprehensibly in the application for interim measures itself. While the application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other written documentation, even if annexed to the application for interim measures, cannot make up for the absence of essential elements in that application (see order of 4 December 2015, E-Control v ACER, T‑671/15 R, not published, EU:T:2015:975, paragraph 8 and the case-law cited).
14 Moreover, point 223 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court expressly states that the application for interim measures must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings, including the annexes thereto.
15 Since failure to comply with the Rules of Procedure constitutes an absolute bar to proceedings, it is for the judge hearing the application for interim measures to examine, if necessary of his or her own motion, whether the applicable provisions of those rules have been complied with (see order of 14 February 2020, Vizzone v Commission, T‑658/19 R, not published, EU:T:2020:71, paragraph 11 and the case-law cited).
16 In the present case it must be noted that, in the application for interim measures, the applicants make no argument in respect of the prima facie case requirement or the balancing of competing interests.
17 As regards, in particular, the requirement of a prima facie case, the applicants merely assert that, convinced of the fairness of the General Court, they are confident that it will uphold the main action.
18 Such an absence of arguments does not enable the judge hearing the application for interim measures to make a legal assessment of whether the pleas for annulment relied on in the main action are prima facie well founded.
19 It follows that the application for interim measures is not intelligible in itself without referring to the application in the main proceedings.
20 That absence of sufficient explanation, in the application for interim measures, of the constituent elements of a possible prima facie case cannot be compensated for by a reference to the application in the main proceedings.
21 In that regard, it is sufficient to note that it is not for the judge hearing the application for interim measures to seek, in place of the party concerned, those matters contained in the annexes or in the main application which would support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for interim measures would, moreover, render ineffective the provision of the Rules of Procedure which requires the application for interim measures to be made by a separate document (see order of 29 July 2010, Cross Czech v Commission, T‑252/10 R, not published, EU:T:2010:323, paragraph 15 and the case-law cited).
22 It follows that, as regards the prima facie case requirement, the present application for interim measures does not comply with the requirements of Article 156(4) of the Rules of Procedure and that, as a result, it must be dismissed as inadmissible.
23 Pursuant to Article 158(5) of the Rules of Procedure, the costs must be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 27 March 2023.
E. Coulon | | M. van der Woude |