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 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) (‘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 8 November 2022, Mr Andrey Alekseevich Lipatov (‘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 20 December 2022, the applicant did not raise any objection to the application to intervene. The applicant also submitted an application for confidential treatment of certain information in the file vis-à-vis the applicant for leave to intervene.
6 By document lodged at the Court Registry on 20 December 2022, the Council contended that the application to intervene of the applicant for leave to intervene should be dismissed and requested that the latter be ordered to bear its own 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 his application, the applicant for leave to intervene submits that he has a direct and existing interest in the result of the case. He submits that he is a Russian citizen who is not included in the list at issue and that he is not associated with any person on that list. In order to invest his savings, the applicant for leave to intervene opened several deposit and securities accounts with Alfa-Bank Joint Stock Company (‘Alfa-Bank’). Alfa-Bank then invested his savings with the applicant and, through it, as the central securities depository of Russia, with Euroclear and other international securities depositories.
13 On 27 October 2022, the applicant for leave to intervene received a letter from Alfa-Bank informing him that certain payments in respect of foreign securities held by him were blocked. The applicant for leave to intervene considers that the applicant’s addition to the list at issue resulted in the freezing of the applicant’s accounts with international depositories (including Euroclear) and that, therefore, it was no longer in a position to carry out transactions on bonds denominated in foreign currencies issued by Russia and Russian companies. Those measures taken against the applicant by the contested acts are the reason why the funds and investments of the applicant for leave to intervene, deposited with the applicant, are blocked. Those measures therefore also have an effect on the assets of the applicant for leave to intervene. The annulment of the contested acts would therefore have a significant impact on the legal situation of the applicant for leave to intervene, since he would be able to recover his assets and funds that are currently blocked. He therefore has a direct and existing interest in intervening in the present case in support of the applicant.
14 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 his application to intervene should be dismissed. According to the Council, the applicant for leave to intervene has not shown that the measures imposed on the applicant by the contested acts constitute the cause of the alleged freezing of his funds with Alfa-Bank.
15 It is apparent from the applicant’s observations on the application to intervene that the applicant for leave to intervene is not a direct customer of the applicant. The applicant for leave to intervene explained that he had accounts opened with Alfa-Bank, which then invested funds through the applicant on the international securities markets. Thus, there is no direct link between the applicant and the applicant for leave to intervene.
16 In addition, 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. In support of his arguments, the applicant for leave to intervene provided documents containing the three deposit accounts which he opened with Alfa Bank and statements of accounts for two of those accounts. It is apparent from those statements that the applicant for leave to intervene made investments in three different securities, namely ‘Alfa bond issuance’, ‘Kongsberg Actuat regs’ and ‘Petroleos Mexicanos’.
17 However, it is apparent from those documents that only one of those securities, namely ‘Alfa bond issuance’, is deposited with the applicant. It is clear from the documents before the Court that the other securities of the applicant for leave to intervene, namely ‘Kongsberg Actuat regs’ and ‘Petroleos Mexicanos’, are deposited directly with Euroclear. Thus, for those securities, the applicant for leave to intervene has not established a link with the applicant since they could have been deposited with Euroclear through other securities depositories or other financial institutions. Therefore, the applicant for leave to intervene provided evidence establishing a link between his investments and the applicant in respect of only one of his securities, namely ‘Alfa bond issuance’.
18 In that respect, although it was deposited with the applicant, the applicant for leave to intervene has not established that the applicant had invested that security through a 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 acts of the European Union 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.
19 According to the evidence submitted by the applicant for leave to intervene, it may be observed that on 25 February 2022 that security moved from Euroclear to the applicant, but there is no evidence to suggest that that security was subsequently deposited by the applicant with Euroclear or any other international depository bound by the contested acts and, therefore, that that security was affected by the measures taken against the applicant. The letter sent by Alfa-Bank to the applicant for leave to intervene on 27 October 2022 confirms that finding. Although that letter informs the applicant for leave to intervene that the payments for its securities ‘Kongsberg Actuat regs’ and ‘Petroleos Mexicanos’ deposited directly with Euroclear, in respect of which the applicant for leave to intervene has not established that they were related to the applicant, were blocked by Euroclear, it does not mention the security ‘Alfa bond issuance’ deposited with the applicant. Therefore, the applicant for leave to intervene has not established that that security was deposited by the applicant with Euroclear or another securities depository which is bound by the contested acts.
20 In view of the above, the applicant for leave to intervene has not demonstrated that there is a link between his interests and the form of order sought by the applicant seeking the annulment of the contested acts. Thus, he has not established that the decision of the General Court in the present case would affect his situation or, therefore, that he has a direct and existing interest in the result of the case.
21 Accordingly, the application to intervene must be dismissed, without there being any need to rule on the applicant’s application for confidential treatment.
Costs
22 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.
23 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.
24 In the present case, although the applicant for leave to intervene has indeed been unsuccessful, the applicant has not submitted any claims as regards the costs relating to the present application for leave to intervene, while 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 Mr Andrey Alekseevich Lipatov is dismissed.
2. Mr Andrey Alekseevich Lipatov, 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.