ORDER OF THE GENERAL COURT (First Chamber)
24 June 2024 (*)
(Action for annulment – Incorrect designation of the defendant – Time limit for bringing proceedings – Out of time – Manifest inadmissibility)
In Case T‑186/24,
Alexey Druzyagin, residing in Mallemort (France), represented by R. Sokol, lawyer,
applicant,
v
European Commission,
defendant,
THE GENERAL COURT (First Chamber),
composed of D. Spielmann (Rapporteur), President, M. Brkan and T. Tóth, Judges,
Registrar: V. Di Bucci,
makes the following
Order
1 By his action under Article 263 TFEU, the applicant, Mr Alexey Druzyagin, seeks annulment of Article 5k(1) of 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), as amended by Council Regulation (EU) No 2023/1214 of 23 June 2023 (OJ 2023 L 159I, p. 1), in so far as it prohibits the award or continued execution of any public or concession contract falling within the scope of the public procurement directives to or with any person whose nationality of origin is Russian (‘the contested provision’).
Facts, procedure and form of order sought by the applicant
2 It is apparent from the information produced by the applicant that he is a shareholder, through his French subsidiary (Radio Technologies SAS), in the Lithuanian company UAB Baltic Radiation Control. That company concluded four contracts with the State undertaking Ignalina Nuclear Power Plant (‘the INPP’), signed on 11 July 2022 and 6 January, 20 January and 9 March 2023.
3 By letter of 19 April 2023, the INPP mentioned the unilateral suspension of those contracts, including the payments thereunder, on the ground that the beneficial owner of UAB Baltic Radiation Control – that is, the applicant – was a Russian national.
4 By decision of the INPP of 22 September 2023, the four contracts were declared null and void on the basis of (i) Article 7(1) of the Lithuanian Law on international sanctions and (ii) the contested provision. Following exchanges between the INPP and the applicant’s lawyer, the INPP confirmed its decision on 7 February 2024. The applicant’s lawyer summed up that situation for the applicant in a report dated 26 February 2024.
5 By application lodged at the Registry of the General Court on 20 March 2024, the applicant claims that the Court should annul the contested provision, under which ‘it shall be prohibited to award or continue the execution of any public or concession contract falling within the scope of the public procurement Directives, … to or with: (a) a Russian national, a natural person residing in Russia, or a legal person, entity or body established in Russia; (b) a legal person, entity or body whose proprietary rights are directly or indirectly owned for more than 50% by an entity referred to in point (a) of this paragraph; or (c) a natural or legal person, entity or body acting on behalf or at the direction of an entity referred to in point (a) or (b) of this paragraph’.
6 The applicant argues that the contested provision constitutes discrimination on grounds of nationality and infringes Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 1 of Protocol No 12, as well as Article 16 of the Charter of Fundamental Rights of the European Union.
Law
7 Under Article 126 of the Rules of Procedure of the General Court, where the action is manifestly inadmissible, the General Court may decide to give a decision by reasoned order without taking further steps in the proceedings.
8 In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give judgment without taking further steps in the proceedings.
9 Under Article 76(c) of the Rules of Procedure, an application of the kind referred to in Article 21 of the Statute of the Court of Justice of the European Union is to state the designation of the party against whom the application is made.
10 In the present case, the application is made against the European Commission, whereas it seeks annulment of the contested provision, which is set out in a regulation issued by the Council of the European Union.
11 Consequently, the present action is inadmissible, since it has been brought against a defendant to which the contested provision is not attributable.
12 In any event, even if the action were to be regarded as having been brought against the Council, it would have to be dismissed as inadmissible, on the ground that it is out of time.
13 It should be borne in mind that, under the sixth paragraph of Article 263 TFEU, an action for annulment must be brought within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
14 According to Article 59 of the Rules of Procedure, where the time limit allowed for initiating proceedings against a measure adopted by an institution runs from the publication of that measure in the Official Journal of the European Union, that time limit is to be calculated from the end of the fourteenth day after such publication. In accordance with Article 60 of those rules, that time limit is, in addition, to be extended on account of distance by a single period of 10 days.
15 According to settled case-law, that time limit prescribed for bringing proceedings is a matter of public policy since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the Courts of the European Union must ascertain of their own motion whether that time limit has been observed (judgments of 23 January 1997, Coen, C‑246/95, EU:C:1997:33, paragraph 21, and of 18 September 1997, Mutual Aid Administration Services v Commission, T‑121/96 and T‑151/96, EU:T:1997:132, paragraphs 38 and 39).
16 In the present case, it is apparent from the information before the Court that the contested provision was inserted into Regulation No 833/2014 by Regulation No 2023/1214 of 23 June 2023, which was published in the Official Journal on 23 June 2023. It follows that the time limit for bringing proceedings seeking annulment thereof began to run from the date of publication of Regulation No 2023/1214, which time limit expired on 18 September 2023.
17 Moreover, the applicant has not pleaded the existence of unforeseeable circumstances or force majeure such as to allow a derogation from the time limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, which applies to proceedings before the General Court under Article 53 of that Statute.
18 In that connection, he states that he became aware of the application of the contested provision to his contractual situation only by means of the report of 26 February 2024 sent to him by his lawyer.
19 However, the application of the contested provision to his own situation can constitute neither the starting point of the time limit for bringing proceedings in the present case, nor unforeseeable circumstances or force majeure within the meaning of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union.
20 In any event, the applicant has the possibility of challenging the lawfulness of the contested provision before the national court having jurisdiction, where appropriate by means of a request for a preliminary ruling on validity within the meaning of Article 267 TFEU.
21 It follows from all the foregoing considerations that the action must be dismissed as being manifestly inadmissible, and there is no need to serve the action on the defendant.
Costs
22 As the present order has been made before service of the application on the defendant and before the latter could have incurred costs, it is sufficient to decide that the applicant must bear his own costs pursuant to Article 133 of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. Mr Alexey Druzyagin shall bear his own costs.
Luxembourg, 24 June 2024.