ORDER OF THE VICE-PRESIDENT OF THE COURT
18 October 2023 (*)
(Appeal – Interim relief – Application to intervene – Restrictive measures taken having regard to the situation in Ukraine – Application submitted by the High Representative of the Union for Foreign Affairs and Security Policy – Interest in the result of the case – Grant of application to intervene)
In Case C‑585/23 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, 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, residing in Moscow (Russia), represented by A. Bass, T. Marembert and D. Rovetta, avocats, and by M. Campa, M. Moretto and V. Villante, avvocati,
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 appeal, the Council of the European Union seeks to have set aside the order of the President of the General Court of the European Union of 19 September 2023, Mazepin v Council (T‑743/22 RIII), by which the latter, first, ordered a number of interim measures and, second, cancelled the order of the President of the General Court of 7 September 2023, Mazepin v Council (T‑743/22 RIII).
2 By document lodged at the Registry of the Court of Justice on 6 October 2023, the High Representative of the Union for Foreign Affairs and Security Policy (‘the High Representative’) applied, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 130 and Article 190(1) and (2) of the Rules of Procedure of the Court of Justice, for leave to intervene in the case, in support of the form of order sought by the Council.
3 By documents lodged at the Court Registry on 9 October 2023, the Council and Mr Nikita Dmitrievich Mazepin submitted written observations on that application.
The application to intervene
The merits of the application to intervene
4 It follows from the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union that the bodies, offices and agencies of the Union establishing an ‘interest in the result of a case submitted to the Court’ are to have the right to intervene in that case (see, to that effect, order of the President of the Court of 3 March 2022, Commission v Council, C‑551/21, EU:C:2022:163, paragraph 13 and the case-law cited).
5 Having regard to the mandate which is conferred on the High Representative in Article 27 TEU and, in particular, to the fact that, while he is assisted by the European External Action Service (EEAS), in accordance with Article 27(3) TEU, he is legally distinct from it, the High Representative must be equated with the ‘bodies, offices and agencies of the Union’ for the purpose of applying the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and may, therefore, intervene in the present dispute, provided that he can establish an interest in the result of that case (see, by analogy, order of the President of the Court of 3 March 2022, Commission v Council, C‑551/21, EU:C:2022:163, paragraph 14).
6 According to the settled case-law of the Court of Justice, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined in the light of the subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the forms of order sought, and not as an interest in relation to the pleas in law or arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment or order (order of the Vice-President of the Court of 7 September 2022, Telefónica de España v Commission, C‑478/22 P(R)‑R, EU:C:2022:676, paragraph 6 and the case-law cited).
7 So far as concerns applications to intervene from bodies, offices and agencies of the Union, the requirement that the applicant have a direct, existing interest in the result of the case must be applied in a way that reflects the specificity of the mandate which such an applicant is called upon to fulfil pursuant to EU law (order of the President of the Court of 3 March 2022, Commission v Council, C‑551/21, EU:C:2022:163, paragraph 16 and the case-law cited).
8 It follows, in particular, from the case-law of the Court that, as regards applications to intervene in a case concerning the annulment of an EU measure submitted by bodies, offices and agencies of the Union, the requirement that the relevant body, office or agency should have a direct, existing interest in the result of the case should be regarded as having been met, inter alia, if it is able to establish that the EU measure at issue was adopted following a procedure in which, in accordance with EU law, its participation is envisaged through, as the case may be, the adoption of opinions or the provision of assessments (order of the President of the Court of 17 September 2021, Parliament v Commission, C‑144/21, EU:C:2021:757, paragraph 13).
9 In the present case, since the dispute which is the subject of the appeal relates to an application for interim measures, the High Representative’s application to intervene will have to be allowed if he establishes that he has, as he claims, a direct, existing interest in the ruling on the form of order sought in that application for interim measures (see, by analogy, order of the Vice-President of the Court of 7 September 2022, Telefónica de España v Commission, C‑478/22 P(R)‑R, EU:C:2022:676, paragraph 7).
10 In that regard, it is important to point out, first, that point 3 of the operative part of the order of the President of the General Court of 19 September 2023, Mazepin v Council (T‑743/22 RIII), is intended to ensure the effectiveness of the order of the President of the General Court of 19 July 2023, Mazepin v Council (T‑743/22 RII, EU:T:2023:406), by which the President of the General Court ordered the suspension of the operation of the EU acts which were adopted on a proposal from the High Representative.
11 Second, it follows from Article 3(1) of 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), as amended by Council Decision 2014/265/CFSP of 12 May 2014 (OJ 2014 L 137, p. 9), that the list of persons, entities and bodies subject to restrictive measures, in the annex to that decision, may be amended on a proposal, inter alia, from the High Representative. The latter therefore has a power which may be exercised in the context of the announced ‘re-listing’ process in respect of Mr Mazepin, the operation of which the President of the General Court ordered to be suspended in point 1 of the operative part of his order of 19 September 2023, Mazepin v Council (T‑743/22 RIII).
12 It follows that the ruling on the form of order sought in the application for interim measures to which the present appeal relates is likely to have decisive effects on the exercise by the High Representative of his powers in relation to Mr Mazepin’s situation.
13 It must, therefore, be held, in the light of the case-law referred to in paragraph 8 above, that the High Representative has a direct, existing interest in the ruling on that form of order sought and thus in the result of the present appeal.
14 Given that the High Representative’s interest in intervening in the present case must be assessed, as is apparent from paragraph 9 above, in the light of the ruling on the aforementioned form of order sought, the fact that he failed to intervene in the main action, to which the application for interim measures – with which the present appeal proceedings are concerned – is ancillary, cannot, contrary to what Mr Mazepin maintains, prevent the High Representative’s intervention in those appeal proceedings from being granted.
15 Consequently, the High Representative must be granted leave to intervene in those proceedings in support of the form of order sought by the Council.
The intervener’s procedural rights
16 The High Representative is entitled, in accordance with Article 131(3) of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal by virtue of Article 190(1) of those rules, to receive a copy of every procedural document served on the parties.
17 Furthermore, although Article 132(1) of the Rules of Procedure provides that the intervener may submit a statement in intervention within one month of that communication of the procedural documents, that provision is not applicable to the summary procedure referred to in Article 39 of the Statute of the Court of Justice of the European Union, which is governed by special procedural rules defined, inter alia, in Articles 160 to 166 of the Rules of Procedure (order of the Vice-President of the Court of 7 September 2022, Telefónica de España v Commission, C‑478/22 P(R)‑R, EU:C:2022:676, paragraph 16).
18 In this case, in order to ensure that the present case is dealt with expeditiously and inasmuch as it relates to an order made pursuant to Article 157(2) of the Rules of Procedure of the General Court, the High Representative may submit a statement in intervention within one week of the aforementioned communication.
Costs
19 Under Article 137(1) of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.
20 In the present case, since the High Representative’s application to intervene is granted, the costs relating to his intervention must be reserved.
On those grounds, the Vice-President of the Court of Justice hereby orders:
1. The High Representative of the Union for Foreign Affairs and Security Policy is granted leave to intervene in Case C‑585/23 P(R) in support of the form of order sought by the Council of the European Union.
2. A copy of every procedural document shall be served on the High Representative of the Union for Foreign Affairs and Security Policy by the Registrar.
3. A period shall be prescribed within which the High Representative of the Union for Foreign Affairs and Security Policy may submit a statement in intervention.
4. The costs relating to the intervention by the High Representative of the Union for Foreign Affairs and Security Policy are reserved.
Luxembourg, 18 October 2023.
A. Calot Escobar | | L. Bay Larsen |