ORDER OF THE PRESIDENT OF THE GENERAL COURT
27 October 2023 (*)
(Interim relief – Common foreign and security policy – Restrictive measures taken in respect of Russian actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds and economic resources – Application for interim measures – Inadmissibility)
In Case T‑743/22 R III,
Nikita Dmitrievich Mazepin, residing in Moscow (Russia), represented by D. Rovetta, M. Campa, M. Moretto, V. Villante, T. Marembert and A. Bass, lawyers,
applicant,
v
Council of the European Union, represented by J. Rurarz and P. Mahnič, acting as Agents,
defendant,
supported by
Republic of Latvia, represented by J. Davidoviča and K. Pommere, acting as Agents,
intervener,
THE PRESIDENT OF THE GENERAL COURT
Having regard to the order of 28 September 2023, Council v Mazepin, (C‑564/23 P(R), EU:C:2023:727),
makes the following
Order
1 By his application based on Articles 278 and 279 TFEU, the applicant, Mr Nikita Dmitrievich Mazepin, seeks, in particular, in the first place, suspension of operation of the announced re-listing of his name on the list of persons, entities and bodies subject to restrictive measures, under the same conditions as those laid down in the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406, points 1 and 2 of the operative part), until delivery of the judgment on the substance of the case, in the second place, an order that the Council of the European Union have published in the same Official Journal of the European Union where the measures re-listing the applicant’s name are to be published, a note stating clearly that those acts are to be suspended under the same conditions as those laid down in the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406, points 1 and 2 of the operative part), until delivery of the judgment on the substance of the case and, in the third place, that the Council be ordered to take the necessary measures to ensure that the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406) is fully and effectively complied with by the Member States and, in particular, that the visa issued to him on 7 August 2023 and any other visa which may be necessary cover at least the territory of the Member States of the European Union which are parties to the Schengen Agreement and remain valid for the period necessary to enable him effectively to exercise the rights conferred on him by that order.
Background to the dispute and forms of order sought
2 On 24 February 2022, the Russian Federation launched a military attack on Ukraine.
3 On the same day, the High Representative of the Union for Foreign Affairs and Security Policy published a declaration on behalf of the European Union condemning in the strongest possible terms the unprovoked invasion of Ukraine by armed forces of the Russian Federation.
4 At its extraordinary meeting on the same day, the European Council condemned the Russian Federation’s unprovoked and unjustified military aggression against Ukraine, while agreeing in principle to the adoption of restrictive measures and economic sanctions against the Russian Federation in the light of the proposals of the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy.
5 On 25 February 2022, in the wake of those statements, the Council, in view of the gravity of the situation, adopted Decision (CFSP) 2022/329 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 50, p. 1), by which it amended the criteria of designation so as to include persons and entities supporting and benefiting from the Government of the Russian Federation as well as persons and entities providing a substantial source of revenue to it, and natural or legal persons associated with listed persons and entities.
6 On the same date, the Council adopted, on the basis of Article 215 TFEU, Regulation (EU) 2022/330 amending Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 51, p. 1), in order to implement the amendments made by Decision 2022/329.
7 On 9 March 2022, the Council adopted Decision (CFSP) 2022/397 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 80, p. 31), by which the applicant’s name was added to 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), as amended.
8 The reasons for including the applicant’s name on the list of persons, entities and bodies covered were the following:
‘Nikita Mazepin is the son of Dmitry Arkadievich Mazepin, General Director of JSC UCC Uralchem. As Uralchem sponsors Haas F1 Team, Dmitry Mazepin is the major sponsor of his son’s activities at Haas F1 Team.
He is a natural person associated with a leading businessperson (his father) involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
9 On the same date, the Council adopted Implementing Regulation (EU) 2022/396 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 80, p. 1), by which the applicant’s name was added, with the same reasons, to the list 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), as amended.
10 On 14 September 2022, in view of the continuing actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, the Council adopted Decision (CFSP) 2022/1530 amending Decision 2014/145 (OJ 2022 L 239, p. 149), by which it decided to maintain the applicant’s name on the list of persons, entities and bodies subject to restrictive measures set out in the Annex to Decision 2014/145.
11 The reasons for including the applicant’s name on the list of persons, entities and bodies covered were the following:
‘Nikita Mazepin is the son of Dmitry Arkadievich Mazepin, former General Director of JSC UCC Uralchem. He was a driver at Haas F1 Team until March 2022, sponsored by Uralchem.
He is a natural person associated with a leading businessperson (his father) involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
12 On the same date, the Council adopted Implementing Regulation (EU) 2022/1529 implementing Regulation No 269/2014 (OJ 2022 L 239, p. 1), by which the applicant’s name was maintained, with the same reasons, on the list in Annex I to Regulation No 269/2014.
13 By letter of 15 September 2022, the Council, after examining the observations submitted by the applicant, informed him that, in its view, those observations did not call into question the assessment that restrictive measures had to be maintained against him and that, consequently, it had decided to maintain his name on the list of persons and entities subject to restrictive measures under Decision 2022/1530 and Implementing Regulation 2022/1529 (together with the letter of 15 September 2022, ‘the September 2022 measures’).
14 On 13 March 2023, the Council adopted Decision (CFSP) 2023/572 amending Decision 2014/145 (OJ 2023 L 75I, p. 134), by which the applicant’s name was maintained on the list of persons, entities and bodies subject to restrictive measures set out in the Annex to Decision 2014/145.
15 The reasons for including the applicant’s name on the list of persons, entities and bodies covered were the following:
‘Nikita Mazepin is the son of Dmitry Arkadievich Mazepin, former General Director of JSC UCC Uralchem. He was a driver at Haas F1 Team until March 2022, sponsored by Uralchem. His foundation “We compete as one” is financed with funds of the Uralkali company and he therefore unduly benefits from his father.
He is a natural person associated with a leading businessperson (his father) involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
16 On the same date, the Council adopted Implementing Regulation (EU) 2023/571 implementing Regulation No 269/2014 (OJ 2023 L 75I, p. 1), by which the applicant’s name was maintained, with the same reasons and the same identifying information, on the list in Annex I to Regulation No 269/2014.
17 By letter of 14 March 2023, the Council, after examining the observations submitted by the applicant, informed him that, in its view, those observations did not call into question the assessment that restrictive measures had to be maintained against him and that, consequently, it had decided to maintain his name on the list of persons and entities subject to restrictive measures under Decision 2014/145, as amended by Decision 2023/572, and under Regulation No 269/2014, as implemented by Implementing Regulation 2023/571 (together with the letter of 14 March 2023 and Decision 2023/572, ‘the March 2023 measures’).
18 Having a view to the re-listing announced by the Council of his name on the list of persons, entities and bodies subject to restrictive measures, the applicant lodged, on 7 September 2023, an application for interim measures, in which he claims that the President of the General Court should:
– order the suspension of operation of the announced re-listing of the applicant’s name on the list of persons, entities and bodies in question, under the same conditions as those provided for in the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406, points 1 and 2 of the operative part), pending delivery of the final judgment in the main proceedings;
– order the Council to publish, in the same Official Journal of the European Union where the measures re-listing the applicant’s name are to be published, a note clearly indicating that those measures are to be suspended under the same conditions as those provided for in the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406, points 1 and 2 of the operative part), pending delivery of the final judgment in the main proceedings;
In any event,
– order the Council to take the measures necessary to ensure that the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406), is fully and effectively complied with by the Member States and, in particular, to ensure that the visa issued to the applicant on 7 August 2023 and any other visa which might become necessary cover at least the territory of the Member States, which are contracting parties to the Schengen Agreement, and remain valid for the time necessary to allow the applicant effectively to exercise the rights arising from that order;
– order the Council urgently to inform the President of the General Court of the measures adopted so as to ensure that the interim measures referred to above are effectively complied with;
– grant any other appropriate interim measures which the President of the General Court may deem necessary, in the light of the circumstances, in order to prevent the serious harm the applicant has already suffered from being further aggravated, as well as to guarantee that the applicant be put in a position effectively to avail himself of the rights granted by the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406);
– provisionally suspend the operation of the announced re-listing of the applicant’s name on the list of persons, entities and bodies in question, under the same conditions as those laid down in the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406, points 1 and 2 of the operative part), in accordance with Article 157(2) of the Rules of Procedure of the General Court and with immediate effect;
– pursuant to Article 157(2) of the Rules of Procedure grant the measures requested on a provisional basis and with immediate effect until an order has been made terminating the interlocutory proceedings;
– order the Council to bear the costs of the present proceedings.
19 On 13 September 2023, the Council adopted Decision (CFSP) 2023/1767 amending Decision 2014/145 (OJ 2023 L 226, p. 104), by which the applicant’s name was maintained on the list of persons, entities and bodies subject to restrictive measures set out in the Annex to Decision 2014/145.
20 The reasons for including the applicant’s name on the list of persons, entities and bodies covered are now the following:
‘Nikita Mazepin is the son of Dmitry Mazepin, owner and former General Director of JSC UCC Uralchem. He was a driver at Haas F1 Team until March 2022, sponsored by Dmitry Mazepin through Uralchem’s subsidiary, Uralkali. His foundation “We compete as one” is set to be financed with funds from Uralkali. He is also associated with his father through joint business interests in the company Hitech GP, which was partly owned by Dmitry Mazepin through Uralkali and whose objective is to benefit Nikita Mazepin’s career as a motorsport driver, and which is now owned by a common business associate of the two men.
He is an immediate family member [benefiting] from and associated with his father, Dmitry Mazepin, a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
21 On the same date, the Council adopted Implementing Regulation (EU) 2023/1765 implementing Regulation No 269/2014 (OJ 2023 L 226, p. 3), by which the applicant’s name was maintained, with the same reasons, on the list in Annex I to Regulation No 269/2014.
22 On 15 September 2023, the Council sent a letter to the applicant informing him of its decision to maintain his name on the lists of persons subject to restrictive measures and to inform him of its observations (together with Decision 2023/1767 and Implementing Regulation 2023/1765, ‘the September 2023 measures’).
23 By a statement of modification, lodged on 20 September 2023 in Case T‑743/22, the applicant requested the Court to annul the September 2023 measures.
24 In its observations on the application for interim measures, lodged at the Court Registry on 26 September 2023, the Council contends that the President of the General Court should:
– dismiss the application as inadmissible and, in any event, as unfounded;
– order the applicant to pay the costs.
Law
General considerations
25 It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
26 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 measure applied for’.
27 The judge hearing an application for interim relief 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 relief 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.)
28 In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited.)
29 Having regard to the material in the file, the President of the General Court considers that he has all the information necessary to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
Admissibility
30 In its observations of 26 September 2023, the Council contended that the application for interim measures was inadmissible on the ground that it was not connected with any case pending before the Court and did not relate to the action for annulment brought by the applicant in Case T‑743/22, since that action was directed against the September 2022 measures and the March 2023 measures.
31 The present action for annulment, brought by the applicant and based on Article 263 TFEU, initially concerned the September 2022 measures adopted by the Council. By a statement of modification lodged on 4 April 2023, the applicant requested, on the basis of Article 86 of the Rules of Procedure, the modification of his application so that it also covers the March 2023 measures. However, at the time when the present application for interim measures was lodged, the applicant had not requested modification of his application in relation to the September 2023 measures, since those measures had not yet been adopted on that date.
32 Consequently, according to the Council, the application for interim measures is not possible either on the basis of Article 278 TFEU or on the basis of Article 279 TFEU and should be dismissed as inadmissible.
33 In addition, the Council contends that the head of claim seeking that the Council be ordered to publish a note in the Official Journal of the European Union is also inadmissible, since such a request infringes, inter alia, the principle of necessity laid down in Article 279 TFEU.
34 Lastly, the Council claims that the head of claim seeking that the Council be ordered to take specific measures, in particular as regards the issue of a visa, is also inadmissible, on the ground that those measures infringe the principle of the division of competences, brought about by Article 266 TFEU, impose on the Council an obligation for which the Council is not competent, in breach of Article 13(2) TEU, and in reality require the Member States to take concrete measures consisting of the grant of a specific type of visa.
35 In that regard, in the first place, it must be borne in mind, as mentioned in paragraph 25 above, that Article 278 TFEU provides that the Court may, if it considers that circumstances so require, order that application of the contested act be suspended.
36 Similarly, Article 279 TFEU, also referred to in paragraph 25 above, provides that, in cases before it, the Court of Justice of the European Union may prescribe any necessary interim measures.
37 As regards an application for suspension of operation of a contested measure referred to in Article 278 TFEU, it follows from Article 156(1) of the Rules of Procedure that such an application is admissible only if the applicant has challenged that measure in an action before the General Court.
38 As regards an application for the grant of one of the interim measures referred to in Article 279 TFEU, it follows from Article 156(2) of the Rules of Procedure that such an application is admissible only if it is made by a main party to a case before the General Court and relates to that case.
39 Thus, proceedings for interim relief are ancillary to the main proceedings to which they are an adjunct, so that the judge hearing the application for interim measures cannot adopt interim measures falling outside the scope of the final decision which may be taken by the General Court in the main action, since the purpose of interim relief proceedings is to ensure the full effectiveness of the judgment in the main proceedings (see order of 17 December 2009, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09 R, not published, EU:T:2009:526, paragraph 38 and the case-law cited).
40 It follows that the admissibility of an application for suspension of operation of a measure challenged under Article 278 TFEU and the adoption of one of the interim measures referred to in Article 279 TFEU is subject to the existence of a sufficiently close link between the suspension of operation of a measure and the interim measure sought, on the one hand, and the form of order sought and the subject matter of the main action, on the other (see, to that effect and by analogy, order of 17 December 2009, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09 R, not published, EU:T:2009:526, paragraph 39 and the case-law cited).
41 In that context, as regards interim measures adopted under Article 279 TFEU, they must not go beyond the scope of the dispute as determined by the main action, in so far as they may have no purpose other than to safeguard the interests of one of the parties to an action before the General Court in order not to render the final judgment in the main proceedings illusory by depriving it of practical effect (order of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 75).
42 In the present case, it must be stated that the applicant did not modify his application before the application for interim measures was lodged, so that, in addition to the annulment of the initial measures, that application also seeks annulment of the September 2023 measures.
43 Since the September 2023 measures had not yet been adopted at the time when the application for interim measures was lodged, the applicant could not, in the context of that application, rely, as a preventive measure, on the protection against the effects of measures not yet adopted by an EU institution by requesting the suspension of the announced re-listing of his name on the list of persons, entities and bodies subject to restrictive measures.
44 Nor, for the same reasons, could the applicant request, as a preventive measure, that the Council publish a note in the same Official Journal of the European Union where the measures re-listing the applicant’s name on the list of persons, entities and bodies subject to restrictive measures are to be published, clearly indicating that those acts are suspended under the same conditions as those laid down in the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406, points 1 and 2 of the operative part).
45 Since the request for publication in the Official Journal of the European Union is directly linked to the process of re-listing the applicant’s name on the list of persons, entities and bodies subject to restrictive measures, it must be held that there is also no sufficiently close link between the interim measure sought, on the one hand, and the subject matter of the main action, on the other, within the meaning of the case-law cited in paragraph 40 above.
46 In the second place, it should be recalled that, according to Article 13(2) TEU, each institution is to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.
47 That provision, which is binding on all the EU institutions, precludes the judge hearing the application for interim measures from ordering the Council to adopt one or more measures which are not within the competence of that institution (order of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 36).
48 As the Vice-President of the Court of Justice held in paragraph 39 of his order of 28 September 2023, Council v Mazepin (C‑564/23 P(R), EU:C:2023:727), primary EU law does not confer on the Council the power to take individual measures to ensure that a visa is issued by a Member State or to guarantee that such a visa would have a specified geographical and temporal scope.
49 Besides, such a power is also not conferred on the Council by acts of the European Union harmonising the visa policies pursued by the Member States. In particular, no such power is provided for in Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243, p. 1) (order of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 40).
50 Lastly, although Article 1(7) of Decision 2014/145, as amended by Council Decision (CFSP) 2023/1218 of 23 June 2023 (OJ 2023 L 159I, p. 526), provides that the Council is to decide, in certain cases, on the possibility for a Member State to issue a visa, it must be stated that that provision does not allow the Council to intervene on its own initiative in relation to a Member State or to issue instructions to a Member State concerning the issue or scope of a visa (order of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraphs 41 and 42).
51 It follows from the foregoing that the applicant’s first, second and third heads of claim must be rejected as being inadmissible and, consequently, his fourth and fifth heads of claim must be rejected. Consequently, the application for interim measures must be dismissed in its entirety.
52 Under Article 158(5) of the Rules of Procedure, the costs are to 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 October 2023.
V. Di Bucci | | M. van der Woude |