ORDER OF THE PRESIDENT OF THE GENERAL COURT
1 March 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 – Application for interim measures – Prima facie case – Urgency – Weighing up of interests)
In Case T‑743/22 R,
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,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 By his application under Articles 278 and 279 TFEU, the applicant, Mr Nikita Dmitrievich Mazepin, seeks (i) suspension of the operation of Council Decision (CFSP) 2022/1530 of 14 September 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 239, p. 149), of Council Implementing Regulation (EU) 2022/1529 of 14 September 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 239, p. 1), and the Council measure of 15 September 2022 maintaining his name on the list of persons, entities and bodies covered by the restrictive measures provided for by 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, and by 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 (together, ‘the contested measures’), in so far as those measures prevent him from negotiating his recruitment as a professional Formula 1 driver or as a driver in other motor sport championships taking place also or only in the European Union, as well as from participating in Formula 1 Grand Prix, tests, training sessions and free sessions and in other motor sport championships, races, tests, training sessions and free sessions taking place in the European Union, and (ii) the grant of any appropriate interim measures which would enable him to negotiate his recruitment as a professional Formula 1 driver or as a driver in other motor sport championships taking place also or only in the European Union, to be recruited as a driver by teams participating in the relevant championships as well as to exercise his rights and perform obligations under the relevant recruitment, including to participate in Formula 1 Grand Prix, tests, training sessions and free sessions and in other motor sport championships, races, tests, training sessions and free sessions taking place in the European Union.
Background to the dispute and forms of order sought by the parties
2 On 24 February 2022, the Russian Federation launched a military attack on Ukraine.
3 On the same day, 24 February 2022, 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 special 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 of the European Union, in view of the gravity of the situation, adopted Decision (CFSP) 2022/329 amending Decision 2014/145 (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 No 269/2014 (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 (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 Decision 2014/145.
8 The reasons for including the applicant’s name on the list of persons, entities and bodies covered are 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 No 269/2014 (OJ 2022 L 80, p. 1), by which the applicant’s name was added, with the same statement of reasons, to the list in Annex I to Regulation No 269/2014.
10 By letter of 31 May 2022, the applicant asked the Council to reconsider the decision to include him on the list of persons, entities and bodies subject to the restrictive measures provided for in Decision 2022/397 and Implementing Regulation 2022/396.
11 By letter of 20 June 2022, the Council informed the applicant of its intention to renew the restrictive measures imposed on him with a new statement of reasons.
12 By letter of 4 July 2022, the applicant replied to the Council’s letter of 20 June 2022.
13 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 2022/1530, 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.
14 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 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.’
15 On the same date, the Council adopted Implementing Regulation 2022/1529, by which the applicant’s name was maintained, with the same statement of reasons, on the list in Annex I to Regulation No 269/2014.
16 By letter of 15 September 2022, the Council, after examining the observations submitted by the applicant in the letters of 31 May and 4 July 2022, 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.
17 By application lodged at the Court Registry on 25 November 2022, the applicant brought an action for annulment of the contested measures.
18 By separate document lodged at the Court Registry on 9 December 2022, the applicant brought the present application for interim measures, in which he claims that the President of the General Court should:
– order suspension of the operation of the contested measures, in so far as those measures prevent him from negotiating his recruitment as a professional Formula 1 driver or as a driver in other motor sport championships taking place also or only in the European Union, as well as from participating in Formula 1 Grand Prix, tests, training sessions and free sessions and in other motor sport championships, races, tests, training sessions and free sessions taking place in the European Union;
– grant any appropriate interim measures which would enable him to negotiate his recruitment as a professional Formula 1 driver or as a driver in other motor sport championships taking place also or only in the European Union, as well as to participate in Formula 1 Grand Prix, tests, training sessions and free sessions and in other motor sport championships, races, tests, training sessions and free sessions taking place in the European Union.
More specifically, the applicant requests the grant of any appropriate interim measures that would enable him (i) to enter the European Union in order to negotiate and conclude agreements with a race team or with sponsors not linked to the activities of his father or to natural or legal persons whose names are included on the lists set out in the annexes to Decision 2014/145 and Regulation No 269/2014, (ii) to enter the European Union in order to participate as a full or reserve driver in Formula 1 championships of the Fédération internationale de l’automobile (FIA) (International Automobile Association (FIA)) or in other championships, training sessions, tests or free sessions, also with a view to obtaining the renewal of his Super Licence, (iii) to enter the European Union in order to undergo the medical examinations required by the FIA or his race team, (iv) to enter the European Union in order to participate in racing, sponsorship and promotion events at the request of his race team or sponsors, (v) to open a bank account in which a salary, bonuses, benefits from his race team and financial contributions from sponsors can be paid to him and, (vi) to use the bank account and a credit card to cover those costs that enable a professional driver to travel in the European Union, to negotiate and conclude agreements with a race team or with sponsors and to participate in championships, Grand Prix, races, training sessions, tests or free sessions in those countries (for example, travel, food, medical and accommodation expenses);
– order the Council to pay the costs.
19 In its observations on the application for interim measures, lodged at the Court Registry on 3 January 2023, the Council contends that the President of the General Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs of the proceedings.
Law
General considerations
20 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 of the General Court. 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).
21 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’.
22 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).
23 In the context of that overall examination, the judge hearing the application for interim relief has a broad discretion and is free to determine, having regard to the specific 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).
24 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.
25 In the circumstances of the present case, and without there being any need to rule on whether the Council measure of 15 September 2022 maintaining the applicant’s name on the list of persons, entities and bodies subject to the restrictive measures provided for in Decision 2014/145 and Regulation No 269/2014 must be regarded as an act open to challenge for the purposes of Article 263 TFEU, it is appropriate to examine first the condition relating to the establishment of a prima facie case.
A prima facie case
26 According to settled case-law, the condition relating to the establishment of a prima facie case is satisfied where at least one of the pleas in law put forward by the applicant for interim measures in support of the main action appears, prima facie, not unfounded. That is the case where one of the pleas relied on reveals the existence of a major legal or factual disagreement whose solution is not immediately obvious and therefore calls for a detailed examination which cannot be carried out by the judge hearing the application for interim measures but must be the subject of the main proceedings (see, to that effect, orders of 3 December 2014, Greece v Commission, C‑431/14 P-R, EU:C:2014:2418, paragraph 20 and the case-law cited, and of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149, paragraph 59 and the case-law cited).
27 In order to determine whether the condition relating to the establishment of a prima facie case is satisfied in the present case, it is necessary to carry out a prima facie examination of the substance of the complaints raised by the applicant in support of the main action and therefore to ascertain whether at least one of them is so weighty that it cannot be ruled out in the proceedings for interim measures (see order 4 May 2020, Csordas and Others v Commission, T‑146/20 R, not published, EU:T:2020:172, paragraph 26 and the case-law cited).
28 In the present case, in order to demonstrate that the contested measures are, prima facie, unlawful, the applicant relies on five pleas in law in the application for interim measures.
29 It is appropriate to examine the third plea of the application for interim measures, by which the applicant claims that the Council made a manifest error of assessment, failed to discharge the burden of proof and infringed, first, the criteria for inclusion on the list of persons, entities and bodies subject to restrictive measures, set out in Article 1(1)(e) and Article 2(1)(g) of Decision 2014/145 and Article 3(1)(g) of Regulation No 269/2014, and, second, the rights of the defence.
30 In particular, the applicant claims, in the first place, that Uralkali, not Uralchem, was the sponsor of Haas F1 Team, his former employer, and that his father, Mr Dmitry Arkadievich Mazepin, whose name is also included on the list of persons, entities and bodies subject to restrictive measures, was never the General Director of Uralkali, which means that his potential involvement in the conclusion of the sponsorship agreement between Uralkali and Haas F1 Team cannot be presumed, but ought to be clearly established by the Council.
31 In the second place, the applicant submits that the Council’s documentary basis does not establish that, through the sponsorship agreement, he unduly benefited from his father, since the fact that a company enters into a sponsorship agreement with a sports team in which the relative of a sanctioned shareholder competes is not in itself sufficient to establish that that relative unduly benefited from the shareholder.
32 In the third place, the applicant alleges that the sponsorship agreement concluded with Haas F1 Team was, for Uralkali, a commercial transaction that was entirely justified from an economic point of view and that global fertiliser companies are regularly involved in sports sponsorship.
33 In the fourth place, the applicant claims that, in September 2022, he was included on the lists of persons, entities and bodies subject to restrictive measures solely because he is the son of Mr Dmitry Arkadievich Mazepin, since all the other reasons for listing relate to past circumstances that have since changed or are incorrect. The applicant submits that, according to the case-law, the fact of being a member of the family of a sanctioned individual is not sufficient in itself to justify the inclusion of a person’s name on those lists on the basis of the criterion of association.
34 The Council disputes the applicant’s arguments.
35 In the first place, the Council contends that, while it is true that Uralkali was the sponsor of Haas F1 Team, it is beyond doubt that Mr Dmitry Arkadievich Mazepin, the applicant’s father, was the Deputy Chairman of the Board of Directors of Uralkali when the sponsorship agreement was signed and that that undertaking was more than 80% owned by Uralchem, which was itself wholly owned by the applicant’s father. Thus, the applicant’s father was controlling both Uralchem and Uralkali and was sponsoring his son’s activities through his companies.
36 In the second place, the Council contends that the applicant unduly benefited from his father through the sponsorship agreement concluded between Uralkali and Haas F1 Team, since the applicant could not have obtained the seat as a driver in the team without bringing the significant sponsorship provided by his father, that sponsorship made little commercial sense for Uralkali, the applicant’s father was responsible for the benefits provided to his son and there is no evidence that that company ever sponsored anyone else for similar sporting activities.
37 In the third place, the Council states that the applicant was not included on the list solely because of his family ties to Mr Dmitry Arkadievich Mazepin. He was listed for being financially dependent on his father and for unduly benefiting from his position. According to the Council, even after the termination of his contract as a Formula 1 driver, the applicant continues to reap the benefits of his situation, including public recognisability, financial stability and the possibility of being recruited as a driver in various high-level motor sport championships. Consequently, it is the financial association that was decisive for the inclusion of the applicant’s name on the list of persons, entities and bodies subject to restrictive measures, not family ties.
38 In that regard, it should be noted that, according to the case-law, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, that the Courts of the European Union ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119).
39 It is in the light of those considerations that the present plea relied upon by the applicant must be examined.
40 In that context, it must be stated that, in the light of the wording of the reasons for maintaining the applicant’s name on the lists at issue, as set out in Decision 2022/1530 and Implementing Regulation 2022/1529, the terms of which are reproduced in paragraph 14 above, and of the listing criteria, the reason for including the applicant’s name on those lists, relied on by the Council under Article 1(1)(e) and Article 2(1)(g), of Decision 2014/145, as amended by Decision 2022/329, and under Article 3(1)(g) of Regulation No 269/2014, as amended by Regulation 2022/330, is his status as 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.
41 In order to justify including the applicant’s name on the lists at issue, the Council produced document WK 3065/2022 INIT, containing publicly available information, namely links to websites, press articles and screenshots.
42 It is therefore necessary to determine whether the Council, prima facie, made an error of assessment in considering that, in the present case, there was a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 38 above, to justify maintaining the applicant’s name on the lists at issue.
43 To that end, in the first place, irrespective of whether Uralkali or Uralchem was the sponsor of Haas F1 Team, and assuming that Mr Dmitry Arkadievich Mazepin exercised effective control over the Uralchem Group, it is necessary to examine the applicant’s argument that the Council has not shown that, through the conclusion of the sponsorship agreement between Uralkali and Haas F1 Team, he unduly benefited from his father.
44 In that regard, it is apparent from the reasons for including the applicant’s name on the lists at issue that, as a driver at Haas F1 Team until March 2022, he was sponsored by Uralchem and that his father was former General Director of JSC UCC Uralchem.
45 It is common ground between the parties that that part of the reasons for listing relates to the fact that the applicant’s father, the former General Director of JSC UCC Uralchem and 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, had, through the sponsorship agreement concluded between Uralkali, a company more than 80% owned by Uralchem, and Haas F1 Team, sponsored the activities of his son.
46 Furthermore, it is apparent from item No 1, page 377, item No 12, pages 397 and 398, item No 13, pages 399 and 400, and item No 14, pages 400 and 401, set out in document WK 3065/2022 INIT, that the Council has substantiated to the requisite legal standard the fact that Uralkali concluded a sponsorship agreement with Haas F1 Team. Moreover, the applicant does not dispute this.
47 Nevertheless, the applicant denies unduly benefiting from his father through that sponsorship agreement and submits, first, that the evidence provided by the Council does not establish that, through the conclusion of that agreement, he unduly benefited from his father and, second, that that agreement was, for Uralkali, a commercial transaction which was entirely justified from an economic point of view.
48 Although it is accepted between the parties that Uralkali concluded a sponsorship agreement with Haas F1 Team, it is not apparent from any of the items of evidence in document WK 3065/2022 INIT that the applicant unduly benefited from his father. In other words, although the Council shows that Uralkali, a company linked to the applicant’s father, did in fact conclude that sponsorship agreement with Haas F1 Team, it does not substantiate the fact that the applicant could not have obtained that seat as a driver on that team without that sponsorship and that the conclusion of that agreement ran counter to the financial interests of Uralkali.
49 Although some of the evidence produced by the Council suggests that the applicant would have benefited from the support of a company linked to his father in order to become a driver in the Formula 1 Team, it must be stated that item No 12, page 397, set out in document WK 3065/2022 INIT also highlights the applicant’s good results in GP 3 (the former name of Formula 3) and in Formula 2 before being recruited by the Formula 1 Team. Thus, the Council does not provide any evidence to assert or assume seriously that the applicant obtained the position of Formula 1 driver solely because of his father’s financial support.
50 Furthermore, it is not apparent from the items of evidence produced by the Council that the sponsorship between Uralkali and Haas F1 Team was tantamount to philanthropy or to a commercial transaction that ran counter to the economic interests of Uralkali, or that that sponsorship did not also benefit the two contracting parties to that agreement. In addition, it is apparent from item No 13, page 400, set out in document WK 3065/2022 INIT that both Uralchem and Uralkali sponsor other sporting activities; in the present case, Uralchem is a long-term partner of the Russian Swimming Federation and Uralkali was the sponsor of the organiser of the Formula 1 Russian Grand Prix.
51 Therefore, it appears, prima facie, that the items of evidence produced by the Council, although they confirm that the sponsorship agreement was indeed concluded, do not make it possible to ascertain whether the applicant unduly benefited from that agreement.
52 It follows from the foregoing that, without prejudging the Court’s decision in the main action, it must be concluded that that argument put forward by the applicant appears, prima facie, not unfounded and therefore calls for a detailed examination which cannot be carried out by the judge hearing the application for interim measures but must be examined in the main proceedings.
53 In the second place, it is necessary to examine the applicant’s argument that the Council maintained him on the lists at issue solely on account of his family ties to Mr Dmitry Arkadievich Mazepin, since all the other reasons for listing relate to past circumstances which have since changed or are incorrect.
54 In that regard, it should be recalled that the application of restrictive measures to natural persons on the sole ground of their family connection with persons associated with the leaders of the third country concerned, irrespective of the personal conduct of such natural persons, is at variance with the case-law of the Court of Justice on Articles 75 TFEU (ex Article 60 EC) and 215 TFEU (ex Article 301 EC) (see, to that effect, judgment of 13 March 2012, Tay Za v Council, C‑376/10 P, EU:C:2012:138, paragraph 66).
55 In the present case, the applicant’s name was included on the lists on 9 March 2022, by Decision 2022/397 and Implementing Regulation 2022/396, on the ground that Mr Dmitry Arkadievich Mazepin, the General Director of JSC UCC Uralchem, was, through Uralchem, the major sponsor of his son’s activities within Haas F1 Team. However, the applicant’s name was maintained on the lists on 14 September 2022 by Decision 2022/1530 and Implementing Regulation 2022/1529, when Mr Dmitry Arkadievich Mazepin was no longer General Director of JSC UCC Uralchem and the applicant had not been a driver at Haas F1 Team since March 2022.
56 It follows from the foregoing that, apart from the family connection with Mr Dmitry Arkadievich Mazepin, the factual basis for the restrictive measures at issue refers exclusively to events in the past.
57 In that regard, in order to justify the continued validity of the reasons for listing, the Council submits in its written pleadings that, even though the applicant is not currently a driver for Haas F1 Team, he continues to be associated with his father through the financial advantages he derives from his father’s position in the relevant sector of the Russian economy. In particular, it contends that the applicant continues to reap the benefits of his situation, including public recognisability, financial stability and the possibility of being recruited as a driver in various high-level motor sport championships.
58 It appears, prima facie, that the Council cannot presume from the mere fact that, when the applicant’s name was included on the lists, the applicant’s father was, through Uralchem, the major sponsor of the applicant’s activities within Haas F1 Team, that the applicant continues to be associated with his father through the financial benefits he derives from the position his father held in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, even several months after the termination of his contract as a Formula 1 driver and the sponsorship agreement concluded between Uralkali and Haas F1 Team. Such a presumption would amount to freezing the applicant’s situation and depriving of all practical effect the periodic review procedure provided for, inter alia, in the third paragraph of Article 6 of Decision 2014/145 and Article 14(4) of Regulation No 269/2014, as amended (see, to that effect and by analogy, judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 86 and the case-law cited).
59 In addition, it should be borne in mind that, as regards decisions concerning the freezing of funds, the use of presumptions is allowed only on condition that those presumptions have been provided for by the measures at issue and that they are consistent with the objective of the legislation at issue. Furthermore, such presumptions must, in all cases, be proportionate to the aim pursued by the Council, be rebuttable and safeguard the applicant’s rights of defence (see judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 89 and the case-law cited).
60 Lastly, it is for the Council, which bears the burden of proof in the present case, to put forward sufficiently conclusive evidence from which it may reasonably be inferred that the person concerned has maintained connections with a leading businessperson (his father) of the Russian Federation, that would justify maintaining his name on the list, even after the termination of his contract as a Formula 1 driver and the sponsorship agreement concluded between Uralkali and Haas F1 Team (see, to that effect, judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 93 and the case-law cited).
61 It appears, prima facie, that the Council has not produced conclusive evidence based on the applicant’s conduct to explain why, apart from the family connection, he had to be regarded as still being connected with his father, a leading businessman of the Russian Federation, after the termination of his contract as a Formula 1 driver and the sponsorship agreement concluded between Uralkali and Haas F1 Team. The Council merely hypothesises, without substantiating its claim in any way, that the applicant continues to reap the benefits of his situation, including public recognisability, financial stability and the possibility of being recruited as a driver in various high-level motor sport championships.
62 It follows from the foregoing that, without prejudging the Court’s decision in the main action, that argument put forward by the applicant appears, prima facie, not unfounded and therefore calls for a detailed examination which cannot be carried out by the judge hearing the application for interim measures but must be examined in the main proceedings.
63 It must therefore be found that there is a prima facie case.
The condition relating to urgency
64 In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU judicature. To attain that objective, urgency must generally be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).
65 It is in the light of those criteria that it must be examined whether the applicant has succeeded in demonstrating urgency.
66 In the present case, in order to demonstrate the serious and irreparable nature of the damage alleged, the applicant submits that, as a result of the restrictive measures taken against him, he was and is unable to negotiate his recruitment, in the 2023 season, to a team as a full-time or reserve Formula 1 driver or as a driver of any other motor sport competition taking place in Europe, such as Formula 2 or the Deutsche Tourenwagen Masters.
67 In addition, in view of the potential length of the court proceedings and the fact that the Council has expressed its intention to maintain the restrictive measures adopted against him, the applicant claims that it is highly likely that he will also be deprived of the possibility of negotiating his recruitment as a full-time or reserve Formula 1 driver for the 2024 season, the negotiations for which will begin in the summer of 2023.
68 It follows, according to the applicant, that his non-participation in the second and, most likely, the third consecutive season of Formula 1 championships and other motor sport championships will make it extremely difficult – if not impossible – for him to be recruited again as a Formula 1 driver or as a driver in other motor sport championships, on account of the short average career of a Formula 1 driver and the fact that he is already 23 years old, the need constantly to maintain his driving skills and the difficulties in obtaining the renewal of his Super Licence if he does not maintain his skills and cannot train in Formula 1 cars.
69 The applicant adds, in that regard, that, since the FIA decided that Russian and Belarusian drivers may participate in international competitions in an individual and neutral capacity, subject to a specific commitment and adherence to the FIA’s principles of peace and political neutrality, he is prepared to sign the ‘Driver Commitment’ document, should he be recruited by a race team.
70 Lastly, the applicant concludes that the resulting damage will be definitive and, should the Court annul the contested measures at the end of the dispute in the main proceedings, no compensation will be able to restore that non-pecuniary damage.
71 The Council disputes the applicant’s arguments.
72 To that end, the Council submits that the applicant has not demonstrated, first, the extent to which serious damage would be avoided if interim measures were granted before a decision is reached in the main action and, second, the irreparable character of the damage by reference to detailed documentary evidence.
73 Furthermore, the Council contends that the restrictive measures are not the direct cause of the damage claimed by the applicant, since the applicant’s contract with the Haas F1 Team was terminated on 4 March 2022, that is, before the European Union adopted restrictive measures against him.
74 Lastly, the Council contends that, as regards the potential damage to the applicant’s career as a motor sport driver, professional motor sport championships also take place outside the European Union, inter alia in the United States, and that, consequently, the EU restrictive measures do not prevent the applicant from participating in such races and continuing his career as a motor sport driver.
75 In that regard, in the first place, it must be stated that the damage claimed by the applicant, namely the loss of the possibility of negotiating his recruitment as a Formula 1 driver or as a professional driver in other motor sport championships, is of a non-pecuniary nature.
76 In the second place, without the requested suspension, the applicant would be deprived of the possibility of negotiating his recruitment as a Formula 1 driver or as a professional driver in other motor sport championships until 15 March 2023, in accordance with the second paragraph of Article 6 of Decision 2014/145, as amended by Decision 2022/1530.
77 However, in view of the continuing actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, it is highly likely that, on 15 March 2023, the Council will decide to extend the maintained listing of the applicant’s name for a further period of six months.
78 The resulting damage to the applicant, in the absence of the suspension sought, may be characterised as particularly serious because it would be extremely difficult – if not impossible – for him to resume his career as a Formula 1 driver in view of his age, the fact that he would not be able to train regularly in Formula 1 cars in the meantime and the likelihood that he would not be able to renew his Super Licence after an interruption of more than three years, should the Court annul the contested measures at the end of the dispute in the main proceedings.
79 Thus, in the absence of the suspension sought and having regard to the potential duration of the proceedings in the main action, the possibility of the applicant resuming, at the end of the main proceedings, his career as a Formula 1 driver, which very often requires his presence in the European Union, in particular in order to participate in Grand Prix, appears to be remote or, in any event, severely limited.
80 The Council’s argument that the EU restrictive measures do not prevent the applicant from participating in motor sport championships outside the European Union, inter alia in the United States, cannot call that finding into question.
81 The damage to the applicant resulting from him being unable to resume his career as a driver in Formula 1, which is one of the most prestigious and high-profile sporting events in the world, cannot be compensated for by the possibility of pursuing his career as a driver in regional motor sport championships which would not improve his prospects of returning to Formula 1.
82 In the third place, it must be held that the damage, consisting in depriving the applicant of the possibility of negotiating his recruitment as a Formula 1 driver or as a professional driver in other motor sport championships, would be irreparable.
83 The applicant’s period of potential activity up to the date of the decision on the substance of the case would elapse irremediably. Thus, the resulting damage to the applicant would become definitive.
84 Consequently, as the applicant submits, no compensation will be able to restore that non-pecuniary damage in the present case.
85 In the light of all the foregoing, it must be held that the condition relating to urgency is satisfied in the present case, since the likelihood of serious and irreparable damage occurring has been established to the requisite legal standard.
The weighing up of interests
86 It is settled case-law that, in weighing up the different interests involved, the judge hearing the application for interim relief has to determine, in particular, whether or not the interest of the party seeking suspension of operation of the contested measure in securing that suspension outweighs the interest in the immediate application of the measure, by examining, more specifically, whether the possible annulment of the measure by the Court when ruling on the main application would allow the situation that would be brought about by its immediate implementation to be reversed and, conversely, whether suspension of operation of the measure would prevent it from being fully effective in the event of the main action being dismissed (see order of 11 March 2013, Iranian Offshore Engineering & Construction v Council, T‑110/12 R, EU:T:2013:118, paragraph 33 and the case-law cited).
87 As regards more particularly the condition that the legal situation created by an interim relief order must be reversible, it must be recalled that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future decision on the main action. Consequently, that procedure is merely ancillary to the main action to which it is an adjunct, and accordingly the decision made by the court hearing an application for interim relief must be provisional in the sense that it cannot either prejudge the future decision on the substance of the case or render it illusory by depriving it of practical effect (see order of 1 September 2015, Pari Pharma v EMA, T‑235/15 R, EU:T:2015:587, paragraph 65 and the case-law cited).
88 It must therefore be examined whether the applicant’s interests in obtaining the immediate suspension of the contested measures outweigh the interests pursued by the Council in adopting those measures.
89 As regards the interests pursued by the applicant, he claims that the possible annulment of the contested measures by the Court at the end of the dispute in the main proceedings would not allow the situation resulting from their immediate implementation to be reversed. The non-pecuniary damage caused to his professional career would become definitive in respect of the potential days of activity elapsing from the date when the restrictive measures took effect until the date of the decision in the main proceedings. Furthermore, as regards the period of activity potentially remaining after the decision in the main proceedings, it would be hardly realistic for him to return to Formula 1, and even to Formula 2 or to Deutsche Tourenwagen Masters, if he misses the opportunity to compete also during the 2023 and 2024 seasons.
90 In addition, the applicant submits that, from the perspective of the Council’s interest, first, suspension of the operation of the contested measures would not impede the objectives which it pursues in the event that the main action is dismissed, since he is not seeking, in particular, the provisional unfreezing of all his funds or economic resources, but only the suspension of the contested measures to the extent necessary to enable him to negotiate his recruitment, to participate in the next motor sport championships and to pursue his professional career. Second, the applicant claims that the interim measures sought would not jeopardise the objectives pursued by the European Union through Decision 2022/1530 and Implementing Regulation 2022/1529, since he is a professional racing driver who is not involved in any Russian business, who has always maintained a neutral position on the war as a professional athlete, who raced under a neutral flag during the 2021 season of Formula 1 and who confirms being ready to sign the Driver Commitment required by the FIA for Russian and Belarusian drivers to continue to compete.
91 By contrast, the Council submits that the weighing up of interests lies in favour of not suspending the operation of the contested measures, taking into account, on the one hand, the importance of the objective which those measures pursue, namely to increase the economic cost of the war of aggression waged by the Russian Federation against Ukraine to a point where it becomes unsustainable for the Russian Federation to pursue it, and, on the other hand, the fact that suspension of the operation of the contested measures would prejudge the future decision in the main proceedings and compromise the very purpose of the procedure for interim relief, which is to guarantee the full effectiveness of the future decision in the main action.
92 As regards the weighing up of interests, it should be noted that, so far as the applicant’s interest is concerned, it follows from paragraphs 79 and 83 above that the annulment of the contested measures would not allow the situation resulting from their immediate implementation to be reversed, since the non-pecuniary damage would become definitive as regards the applicant’s period of potential activity up to the date of the decision on the substance of the case and since, on that date, it would be extremely difficult – if not impossible – for him to resume his career as a Formula 1 driver.
93 Consequently, should the applicant succeed in having the contested measures annulled in the main proceedings, any damage which he may have suffered as a result of the harm to his interests cannot subsequently be assessed and made good or compensated.
94 As far as the Council is concerned, the interests relied on are public interests that aim to protect European security and stability and form part of an overall strategy seeking to put an end to the aggression suffered by Ukraine as soon as possible.
95 In the light of the paramount importance of the objectives pursued by the contested measures, namely the protection of Ukraine’s territorial integrity, sovereignty and independence, which fall within the wider objective of maintaining international peace and security, it is necessary to examine whether the immediate suspension of the contested measures, in so far as those measures concern the applicant, would threaten the European Union’s pursuit of the objectives, in particular peaceful objectives, which it has set for itself in accordance with Article 3(1) and (5) TEU, at the price, each day, of irreparable material and non-material damage.
96 In that regard, as follows from paragraphs 51 and 61 above, it appears, prima facie, that the measures by which the restrictive measures were maintained in respect of the applicant were not taken on a sufficiently solid factual basis to justify maintaining the applicant’s name on the lists at issue since, first, the evidence produced by the Council does not, prima facie, make it possible to ascertain whether the applicant unduly benefited from the sponsorship agreement concluded between Uralkali and Haas F1 Team and, second, the Council has not produced, prima facie, conclusive evidence based on the applicant’s conduct to explain why, apart from the family connection, he had to be regarded as still being connected with his father after the termination of his contract as a Formula 1 driver and the sponsorship agreement concluded between Uralkali and Haas F1 Team.
97 Furthermore, the applicant claimed, without being challenged by the Council on that point, that he is not involved in any Russian business, has always maintained a neutral position on the war as a professional athlete, raced under a neutral flag during the 2021 season of Formula 1 and is ready to sign the Driver Commitment required by the FIA for Russian and Belarusian drivers to continue to compete.
98 It must therefore be held that the applicant is a young sportsman who is in no way involved in the aggression suffered by Ukraine and who is not engaged in any activity in economic sectors providing a substantial source of revenue to the Government of the Russian Federation. He merely asks that he be given the opportunity to pursue his career as a Formula 1 driver without the financial support of his father.
99 Lastly, since the applicant seeks suspension of the operation of the contested measures, in so far as they concern him, only to the extent necessary to enable him to negotiate his recruitment, to participate in the next motor sport championships and to pursue his professional career, it must be acknowledged that, in those circumstances, suspension of the operation of the contested measures will not prejudge the future decision in the main proceedings or compromise the very purpose of the procedure for interim relief, which is to guarantee the full effectiveness of the future decision in the main action.
100 In the light of all the foregoing, it must be concluded that the weighing up of interests lies in favour of the applicant.
101 Thus, suspension of the operation of the contested measures, in so far as they concern the applicant, must be limited to what is strictly necessary to enable him to negotiate his recruitment as a professional Formula 1 driver or as a driver in other motor sport championships taking place also or only in the European Union, as well as to participate in Formula 1 Grand Prix, tests, training sessions and free sessions and in other motor sport championships, races, tests, training sessions and free sessions taking place in the European Union. To that end, the applicant is authorised only (i) to enter the European Union in order to negotiate and conclude agreements with a race team or with sponsors not linked to the activities of his father or to natural or legal persons whose names are included on the lists set out in the annexes to Decision 2014/145 and Regulation No 269/2014, (ii) to enter the European Union in order to participate as a full or reserve driver in Formula 1 championships of the FIA or in other championships, training sessions, tests or free sessions, also with a view to obtaining the renewal of his Super Licence, (iii) to enter the European Union in order to undergo the medical examinations required by the FIA or his race team, (iv) to enter the European Union in order to participate in racing, sponsorship and promotion events at the request of his race team or sponsors, (v) to open a bank account in which a salary, bonuses, benefits from his race team and financial contributions from the sponsors accepted by his team can be paid to him and, (vi) to use the bank account and a credit card only to cover those costs that enable a professional driver to travel in the European Union, to negotiate and conclude agreements with a race team or with sponsors and to participate in championships, Grand Prix, races, training sessions, tests or free sessions in the Member States of the European Union.
102 Should he be recruited as a Formula 1 driver or as a driver in other motor sport championships taking place also or only in the European Union, the applicant must undertake to race under a neutral flag and to sign the Driver Commitment required by the FIA for that purpose.
103 It follows from all the foregoing that the application for interim measures must be granted to that extent.
104 Accordingly, since all the necessary conditions are met, the application for suspension of the operation of the contested measures must be granted.
105 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 operation of Council Decision (CFSP) 2022/1530 of 14 September 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, of Council Implementing Regulation (EU) 2022/1529 of 14 September 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, and the Council measure of 15 September 2022 maintaining the name of Mr Nikita Dmitrievich Mazepin on the list of persons, entities and bodies covered by the restrictive measures provided for by 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, as amended, and by 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, as amended, is suspended in so far as the name of Mr Mazepin was maintained on the list of persons, entities and bodies covered by those restrictive measures and only to the extent necessary to enable him to negotiate his recruitment as a professional Formula 1 driver or as a driver in other motor sport championships taking place also or only in the European Union, as well as to participate in Formula 1 Grand Prix, tests, training sessions and free sessions and in other motor sport championships, races, tests, training sessions and free sessions taking place in the European Union. To that end, Mr Mazepin is authorised only (i) to enter the European Union in order to negotiate and conclude agreements with a race team or with sponsors not linked to the activities of Mr Dmitry Arkadievich Mazepin or to natural or legal persons whose names are included on the lists set out in the annexes to Decision 2014/145 and Regulation No 269/2014, (ii) to enter the European Union in order to participate as a full or reserve driver in Formula 1 championships of the Fédération internationale de l’automobile (FIA) (International Automobile Association (FIA)) or in other championships, training sessions, tests or free sessions, also with a view to obtaining the renewal of his Super Licence, (iii) to enter the European Union in order to undergo the medical examinations required by the FIA or his race team, (iv) to enter the European Union in order to participate in racing, sponsorship and promotion events at the request of his race team or sponsors, (v) to open a bank account in which a salary, bonuses, benefits from his race team and financial contributions from the sponsors accepted by his team can be paid to him and, (vi) to use the bank account and a credit card only to cover those costs that enable a professional driver to travel in the European Union, to negotiate and conclude agreements with a race team or with sponsors and to participate in championships, Grand Prix, races, training sessions, tests or free sessions in the Member States of the European Union.
Should he be recruited as a Formula 1 driver or as a driver in other motor sport championships taking place also or only in the European Union, Mr Mazepin must undertake to race under a neutral flag and to sign the Driver Commitment required by the FIA for that purpose.
2. The costs are reserved.
Luxembourg, 1 March 2023.
E. Coulon | | M. van der Woude |