ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
31 March 2023 (*)
(Restrictive measures taken in view of the situation in Ukraine – Freezing of funds and economic resources – No interest in the result of the case)
In Case T‑494/22,
NKO AO National Settlement Depository (NSD), established in Moscow (Russia), represented by N. Tuominen, M. Krestiyanova, J.-P. Fierens, C. Vangoidsenhoven and C. Gieskes, lawyers,
applicant,
v
Council of the European Union, represented by M. Bishop, acting as Agent, and by B. Maingain,
defendant,
supported by
European Commission, represented by J.-F. Brakeland and G. von Rintelen and M. Carpus Carcea, acting as Agents,
intervener,
APPLICATION under Article 263 TFEU seeking the annulment of Council Implementing Regulation (EU) 2022/878 of 3 June 2022 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 153, p. 15) and Council Decision (CFSP) 2022/883 of 3 June 2022 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 153, p. 92) (together ‘the contested acts’),
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
Facts and Procedure
1 On 3 June 2022, by the contested acts, the Council added the applicant to the list of natural and legal persons, entities and bodies set out in Annex I to 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) (‘the list at issue’). The inclusion of the applicant on the list at issue had the consequence that the funds and economic resources which belonged to it or which it owned, held or controlled were frozen.
2 By application lodged at the Court Registry on 16 August 2022, the applicant brought an action for annulment of the contested acts.
3 By document lodged at the Court Registry on 10 November 2022, Maritime Bank JSC (‘the applicant for leave to intervene’) applied to intervene in support of the form of order sought by the applicant.
4 The application to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
5 By document lodged at the Court Registry on 15 December 2022, the applicant did not raise any objection to the application to intervene.
6 By document lodged at the Court Registry on 6 January 2023, the Council contended that the application to intervene of the applicant for leave to intervene should be dismissed and requested that it be ordered to pay the costs relating to that application to intervene.
Law
7 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that Statute, any person establishing an interest in the result of a case submitted to the General Court, to the exclusion of cases between Member States, between EU institutions or between Member States, on the one hand, and institutions of the European Union, on the other, is entitled to intervene in that case.
8 It follows from settled case-law that the concept of an ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, must be defined in the light of the precise subject matter of the dispute 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’, used in that provision, refer to the final decision sought, as set out in the operative part of the future judgment (see order of the Vice-President of the Court of Justice of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 6 and the case-law cited). In that regard, it is appropriate, in particular, to ascertain that the applicant for leave to intervene is directly affected by the contested act and that his or her interest in the result of the case is certain (see, to that effect, order of the President of the Court of Justice of 25 January 2008, Provincia di Ascoli Piceno and Comune di Monte Urano v Sun Sang Kong Yuen Shoes Factory, C‑461/07 P(I), not published, EU:C:2008:46 paragraph 5).
9 Moreover, the existence of an interest in the result of the case presupposes, where the applicant for leave to intervene is in support of the form of order sought by the applicant, that the action must be liable, if successful, to procure an advantage for the applicant for leave to intervene (see, to that effect, judgments of 19 October 1995, Rendo and Others v Commission, C‑19/93 P, EU:C:1995:339, paragraph 13; and of 28 September 2004, MCI v Commission, T‑310/00, EU:T:2004:275, paragraph 44; see also, to that effect, order of 11 June 2015, Larko v Commission, T‑412/14, not published, EU:T:2015:431, paragraph 18).
10 It is for the applicant for leave to intervene to adduce the evidence necessary to prove that he or she satisfies the conditions set out in paragraph 8 above (see order of 27 April 2018, E‑Control v ACER, T‑332/17, not published, EU:T:2018:294, paragraph 16 and the case-law cited).
11 It is in the light of the case-law set out in paragraphs 8 to 10 above that it is necessary to examine whether the applicant for leave to intervene has established an interest in the result of the case.
12 In support of its application, the applicant for leave to intervene submits that it has a direct and existing interest in the result of the case. It submits that it holds funds which are deposited with the applicant and which are frozen as a result of the restrictive measures taken against the applicant. In that regard, it lists Eurobonds as well as payments relating to Eurobonds and refers to an annex to its application to intervene.
13 The Council submits that the applicant for leave to intervene does not have a direct and existing interest in the result of the case and that its application to intervene should be dismissed. According to the Council, the applicant for leave to intervene has not adduced evidence of a freezing of funds and has not shown that the measures imposed on the applicant by the contested acts constitute the cause of the alleged freezing of its funds.
14 The applicant for leave to intervene claims, first, that it is the owner of funds deposited with the applicant. Among those funds, the applicant for leave to intervene lists Eurobonds, payments relating to Eurobonds and monetary funds. Secondly, the applicant for leave to intervene claims that those funds are blocked because of the contested acts, in so far as they concern the applicant. The applicant for leave to intervene merely refers to an annex to its application which contains statements of accounts in its name from the applicant.
15 However, the applicant for leave to intervene has not adduced evidence to show that the funds at issue were invested by the applicant through a European financial institution obliged to apply the contested implementing regulation. It must be pointed out that the subject matter of the dispute in the main proceedings is the annulment of the contested acts that are binding on the financial institutions obliged to apply that regulation, which are required to freeze funds and assets belonging to, owned, held or controlled by the applicant. Consequently, the applicant for leave to intervene must demonstrate that the security deposited with the applicant and the payments in respect of that security are linked to a financial institution obliged to apply the contested implementing regulation, such as Euroclear.
16 Indeed, the applicant for leave to intervene has not shown that a financial institution obliged to apply the contested implementing regulation froze its funds deposited with the applicant or blocked a payment in connection with a security held by the applicant for leave to intervene. The document on page 162 of the annexes provided by the applicant for leave to intervene states that ‘due to the restrictions imposed by the foreign depository as to the account opened by NSD … in connection with the funds, NSD …, records the funds to be paid to your company … in the internal accounting …, up to the aforementioned restrictions removing’. However, it should be noted that that document does not make it possible to establish a link with the contested acts, in so far as they concern the applicant, because of the absence of any additional information concerning that account opened by the applicant ‘in connection with the funds’. It has not been established that it is an account opened with a European financial institution obliged to apply the contested implementing regulation.
17 In view of the above, the applicant for leave to intervene has not demonstrated that there is a link between its interests and the form of order sought by the applicant seeking the annulment of the contested acts. Thus, it has not established that the decision of the General Court in the present case would affect its situation or, therefore, that it has an interest in the result of the case.
18 Accordingly, the application to intervene must be dismissed.
Costs
19 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings as far as the applicant for leave to intervene is concerned, a decision should be made on the costs relating to his application.
20 Under Article 134(1) of the Rules of Procedure, read in conjunction with Article 144(6) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
21 In the present case, while the applicant for leave to intervene has indeed been unsuccessful, the applicant has not submitted any claims in relation to the present application for leave to intervene, whereas the Council has requested that the applicant for leave to intervene be ordered to bear its own costs. It is therefore appropriate to order the applicant, the Council and the applicant for leave to intervene to bear their own costs relating to the application to intervene.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The application to intervene of Maritime Bank JSC is dismissed.
2. Maritime Bank JSC, the Council of the European Union and NKO AO National Settlement Depository (NSD) shall bear their own costs relating to the application to intervene.
Luxembourg, 31 March 2023.