Order;Summary — ECLI:EU:C:2023:727
Date: 2023-09-28
Language of the case: English
Court formation: Vice-President
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - successful;Application for interim measures

summary procedure, which may, in so far as necessary, differ from some of the rules contained in [that] Statute and which shall be laid down in the Rules of Procedure’. 57 In that context, Article 157(1) of the Rules of Procedure of the General Court authorises the President of the General Court to prescribe a short time limit within which the opposite party is to submit written or oral observations. Article 157(2) of those Rules of Procedure provides, however, that the President of the General Court may grant an application for interim measures made by a party even before the observations of the opposite party have been submitted. 58 It follows from those provisions that the President of the General Court, acting as the judge hearing an application for interim measures, is empowered to rule on the application without first hearing the parties in their observations (see, to that effect, order of the Vice-President of the Court of 8 December 2020, Price v Council, C‑298/20 P(R), EU:C:2020:1006, paragraph 26 and the case-law cited). 59 It follows from the case-law of the Court of Justice relating to Article 160(7) of the Rules of Procedure of the Court of Justice, a provision which corresponds to Article 157(2) of the Rules of Procedure of the General Court, that the judge hearing an application for interim measures may adopt such measures as a protective measure, even before the other party has submitted its observations, either until an order has been made terminating those interlocutory proceedings or until the main proceedings are terminated, if those proceedings are held earlier, where the adoption of those measures is in the interests of the proper administration of justice, in particular with a view to ensuring the effectiveness of the interlocutory proceedings (see, to that effect, order of the Vice-President of the Court of 27 July 2023, VC v EU-OSHA, C‑456/23 P(R)-R, EU:C:2023:612, paragraph 4 and the case-law cited). 60 The procedure established by Article 157(2) of the Rules of Procedure of the General Court thus constitutes a derogation procedure designed to enable interim measures to be ordered as swiftly as possible, in order to ensure that the passage of time necessary to give a ruling, following inter partes proceedings, on an application for interim measures does not have the effect of depriving the party which has brought that application of sufficient judicial protection. 61 The fact remains that that derogation procedure constitutes a specific means of implementing Articles 278 and 279 TFEU and the first paragraph of Article 39 of the Statute of the Court of Justice of the European Union. Therefore, it must be held that, as the Council maintains, that procedure does not allow the judge hearing the application for interim measures to take measures which he or she would not be authorised to adopt pursuant to Articles 278 and 279 TFEU. 62 In so far as the order under appeal does not specify whether the measures ordered in points 1 and 2 of its operative part are based on Article 278 TFEU or on Article 279 TFEU, it is necessary to examine whether those measures fall within the jurisdiction conferred on the judge hearing the application for interim measures by the one or the other of those articles. 63 As regards, in the first place, Article 278 TFEU, that article provides that actions brought before the Court of Justice are not to have suspensory effect, but that the Court may, if it considers that circumstances so require, order that application of the contested measure be suspended. 64 That article is implemented by Article 156(1) of the Rules of Procedure of the General Court, which states that an application under Article 278 TFEU to suspend the operation of any measure adopted by an institution is to be admissible only if the applicant has challenged that measure in an action before the General Court. 65 In the present case, on the date on which the order under appeal was signed, in the context of the action for annulment brought before that court by Mr Mazepin, the form of order sought before the General Court covered Decisions 2022/1530 and 2023/572 and Implementing Regulations 2022/1529 and 2023/571 (together, ‘the contested measures’). 66 In that context, it must be stated that points 1 and 2 of the operative part of that order are not formally presented as declaring the suspension of the operation of one or more of the measures contested by Mr Mazepin before the General Court. 67 Nor can those points be regarded as ordering, in essence, the suspension of some of the effects of those measures. 68 The ‘re-listing’ process, of which point 1 of the operative part of the order under appeal orders the suspension, seeks to amend, first, Decision 2014/145 by extending that decision and, second, Regulation No 269/2014 by implementing the obligation, set out in Article 14(4) of that regulation, to review at regular intervals the list in Annex I to that regulation. 69 Therefore, given that the contested measures also merely amend Decision 2014/145 and Regulation No 269/2014, without however obliging the Council to initiate a new ‘re-listing’ process in the future, the process referred to in that point 1 cannot be regarded as constituting an effect or a measure implementing those measures. 70 As for point 2 of the operative part of the order under appeal, it orders the publication of a note in the Official Journal of the European Union, a publication which is neither provided for nor prohibited by those measures. 71 It follows that points 1 and 2 of that operative part could not validly be based on Article 278 TFEU. 72 As regards, in the second place, Article 279 TFEU, that article states that, in any cases before it, the Court of Justice may prescribe any necessary interim measures. 73 That article confers on the judge hearing an application for interim measures a wide discretion to decide on the measures to be ordered, which may, inter alia, consist of appropriate injunctions and ancillary measures intended to ensure the effectiveness of the interim measures ordered by that judge (see, to that effect, order of the President of the Court of 24 April 2008, Commission v Malta, C‑76/08 R, EU:C:2008:252, paragraph 19, and order of 20 November 2017, Commission v Poland, C‑441/17 R, EU:C:2017:877, paragraphs 96, 97 and 99). 74 However, it is clear from the case-law of the Court that such interim measures must have a direct link with the subject matter of the main action (see, to that effect, order of 19 October 1976, Société pour l’Exportation des Sucres v Commission, 88/76 R, EU:C:1976:140, paragraph 5, and of 16 December 1980, Metallurgica Rumi v Commission, 258/80 R, EU:C:1980:296, paragraph 21), a requirement which is, in essence, recalled in Article 156(2) of the Rules of Procedure of the General Court, which provides that an application relating to one of the interim measures referred to in Article 279 TFEU is to be admissible only if it is made by a main party to a case before the General Court and relates to that case. 75 In that context, interim measures adopted under Article 279 TFEU 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 (see, to that effect, order of 17 May 1991, CIRFS and Others v Commission, C‑313/90 R, EU:C:1991:220, paragraph 24, and order of the President of the Court of 24 April 2008, Commission v Malta, C‑76/08 R, EU:C:2008:252, paragraph 15). 76 Therefore, given that a judgment annulling a measure has the effect of retroactively eliminating the annulled measure from the EU legal order (see, to that effect, judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 60), the judge hearing an application for interim measures may, inter alia, on the basis of Article 279 TFEU, order an EU institution not to adopt a measure which would constitute a form of implementation of the annulled measure or which would have the consequence of rendering certain effects of that measure definitive. 77 In contrast, the judge hearing an application for interim measures cannot, without exceeding the scope of a dispute relating to an action for annulment, order an EU institution to suspend a procedure which does not depend on the contested measure, in order to prevent the measure adopted at the end of that procedure from containing the same illegality as that complained of in that action. 78 It is true that the Court has held that, in the event of annulment of a regulation whose effect is limited to a clearly defined period, the institution which adopted that regulation is under an obligation to exclude from new legislation which was to be adopted after the judgment annulling that regulation, in order to govern periods subsequent to that judgment, any provision having the same content as that held to be unlawful (see, to that effect, judgment of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 29). 79 However, first, although the authority erga omes exerted by an annulling judgment attaches to both the operative part and the ratio decidendi of the judgment, it cannot entail annulment of an act not challenged before the EU judicature but alleged to be vitiated by the same illegality (see, to that effect, judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 54). Second, it is not for those courts to indicate, in a judgment annulling a measure, the measures to be adopted by the institution concerned in order to comply with that judgment (see, to that effect, judgments of 24 June 1986, AKZO Chemie and AKZO Chemie UK v Commission, 53/85, EU:C:1986:256, paragraph 23, and of 25 May 1993, Foyer Cultural du Sart-Tilman v Commission, C‑199/91, EU:C:1993:205, paragraph 17). 80 It follows that a judgment annulling a measure cannot directly call into question the validity of a measure subsequent to the annulled measure on the ground that that subsequent measure is vitiated by the same illegality as that vitiating the annulled measure. 81 In those circumstances, an order of the judge hearing an application for interim measures ordering an EU institution to suspend a procedure which may lead to the adoption of such a subsequent measure would be tantamount to providing the applicant concerned not with protection against the effects of measures adopted by an institution, as provided for by primary EU law, but with preventive protection of an entirely different order. 82 In order to guarantee such protection, the judge hearing an application for interim measures would thus be obliged to assess questions on which the institution concerned has not yet had the opportunity to state its position, which would have the consequence of anticipating the arguments on the substance of the case, confusing different procedural stages both administrative and judicial (see, by analogy, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 20), whereas it is not for that judge to take the place of that institution (see, to that effect, order of 5 October 1969, Germany v Commission, 50/69 R, EU:C:1969:42, p. 451). 83 In addition, the fact that the judge hearing an application for interim measures does not have jurisdiction to order an EU institution to suspend a procedure which does not depend on a contested measure, in order to prevent the measure adopted at the end of that procedure from containing the same illegality as that complained of in an action for annulment, is not, contrary to Mr Mazepin’s submissions, such as to deprive him of the judicial protection granted to him by primary EU law, in so far as the latter measure may be the subject of an action for annulment accompanied by an application for interim measures, which may, where appropriate, seek interim measures pursuant to Article 156(2) of the Rules of Procedure of the General Court. 84 In the present case, as is apparent from paragraph 65 of the present order, on the date on which the order under appeal was signed, the forms of order sought in the action for annulment brought before the General Court by Mr Mazepin related to the contested measures. 85 First, for the reasons set out in paragraphs 68 and 69 of the present order, the measures that may be adopted by the Council in the context of the ‘re-listing’ process at issue in the present case must be regarded as resulting from a procedure which does not depend on the contested measures and, in particular, as not implementing the latter measures. 86 Second, the measures that may be adopted by the Council in the context of that process are intended, in the light of that institution’s practice, to be applicable for a period subsequent to that governed by the contested measures, with the result that they are not capable of rendering definitive the effects of those measures. 87 It follows that the measure ordered in point 1 of the operative part of the order under appeal has no direct link with the subject matter of the action for annulment brought by Mr Mazepin before the General Court. In the absence of such a link, that measure cannot be regarded as constituting an ancillary measure intended to ensure the effectiveness of the interim measures already ordered by the President of the General Court in the earlier orders which he made in the present case, referred to in paragraphs 12 and 14 of the present order, since, by those orders, the President of the General Court ordered the partial suspension of operation of the measures targeted by that action for annulment. It follows that the measure ordered in that point 1 of the operative part could not validly be adopted under Article 279 TFEU. 88 The same is true of the measure ordered in point 2 of the operative part of the order under appeal, since it merely ensures publication of the measure ordered in point 1 of that order. 89 The fact that, after the date of signature of the order under appeal, Mr Mazepin submitted to the General Court a statement modifying the form of order sought in his application is, in any event, irrelevant to the foregoing considerations, in so far as that statement seeks the annulment of new measures adopted by the Council, measures which are not directly targeted by the measures set out in the operative part of that order. 90 It follows that the second ground of appeal must be upheld and that it is appropriate, without it being necessary to rule on the first, third and fourth grounds of appeal, to set aside the order under appeal in its entirety, in so far as point 4 of the operative part of that order is not severable from points 1 to 3 thereof. The application for interim measures brought before the General Court 91 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the Court of Justice sets aside a decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. That provision also applies to appeals brought under the second paragraph of Article 57 of that statute (order of the Vice-President of the Court of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 172 and the case-law cited). 92 In the present case, the President of the General Court gave his ruling before the other parties to the proceedings had been given an opportunity to submit their observations, in accordance with Article 157(1) of the Rules of Procedure of the General Court. 93 In those circumstances, it appears that the state of the proceedings does not permit final judgment to be given in the matter and that it is therefore appropriate to refer the case back to the General Court. Costs 94 Since the case has been referred back to the General Court, the costs must be reserved. On those grounds, the Vice-President of the Court hereby orders: 1. The order of the President of the General Court of the European Union of 7 September 2023, Mazepin v Council (T‑743/22 RIII) is set aside. 2. The case is referred back to the General Court of the European Union. 3. The costs are reserved. Luxembourg, 28 September 2023. A. Calot Escobar L. Bay Larsen Registrar Vice-president * Language of the case: English.