Order — ECLI:EU:C:2023:829
Date: 2023-10-18
Language of the case: English

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’. 63 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. 64 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 (order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 58). 65 That derogation procedure constitutes, nonetheless, only 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. 66 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. 67 As regards, in the first place, Article 278 TFEU, that article provides that actions brought before the Court 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. 68 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. 69 In the present case, on the date on which the order under appeal was signed, the form of order sought before the General Court, in the context of the action for annulment brought before that court by Mr Mazepin, covered Decisions 2022/1530 and 2023/572 and Implementing Regulations 2022/1529 and 2023/571 (together, ‘the measures at issue’). 70 In that context, it must be stated that points 1 and 2 of the operative part of the order under appeal 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. 71 Nor can those points be regarded as ordering, in essence, the suspension of some of the effects of those measures (see, by analogy, order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraphs 67 to 70). 72 It follows that points 1 and 2 of that operative part could not validly be based on Article 278 TFEU. 73 As regards, in the second place, Article 279 TFEU, that article states that, in any cases before it, the Court may prescribe any necessary interim measures. 74 Although that article confers on the judge hearing an application for interim measures a wide discretion to decide on the measures to be ordered, 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 the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraphs 73 to 75 and the case-law cited). 75 In particular, the judge hearing an application for interim measures that is ancillary to an action for annulment 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 (see, to that effect, order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 76). 76 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 (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 77). 77 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 the provision held to be unlawful (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 78 and the case-law cited). 78 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. 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 (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 79 and the case-law cited). 79 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 (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 80). 80 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 (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 81). 81 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, whereas it is not for that judge to take the place of that institution (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 82 and the case-law cited). 82 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 (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 83). 83 It must also be stated that, in the present case, following the completion of the ‘re-listing’ process concerning Mr Mazepin, that is, after the date of signature of the order under appeal, Mr Mazepin modified his application for annulment and made a new application for interim relief seeking interim measures relating to new acts adopted by the Council. 84 Admittedly, such an application for interim measures is not capable of avoiding all forms of implementation of those new acts, since those acts may produce effects during the period inevitably separating the date on which they are adopted and the date on which that application for interim measures is examined. That is, however, an inherent consequence of the structure of the actions provided for by the Treaties and the powers conferred on the judge hearing an application for interim measures by Articles 278 and 279 TFEU, since the authors of the Treaties did not allow the potential addressees of an act whose adoption is contemplated by an EU institution to challenge that act in advance or to obtain preventive protection against it. 85 In so far as Mr Mazepin submits that such an interpretation of those articles is incompatible with Article 47 of the Charter, it is apparent from settled case-law that that article is not intended to change the system of judicial review laid down by the Treaties, as is apparent also from the Explanation on Article 47 of the Charter, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (see, to that effect, judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 43). 86 Accordingly, while the powers of the judge hearing the application for interim relief provided for in Articles 278 and 279 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, that interpretation cannot have the effect of setting aside the limits of those powers which flow from the FEU Treaty (see, by analogy, judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 44). 87 Since those articles preclude an interim measure from being adopted without any link to a case before the EU Court concerned, the opposite view of the powers of the judge hearing the application for interim measures, defended by Mr Mazepin, cannot be accepted and the plea of illegality raised by him in respect of Article 156(2) and Article 157(2) of the Rules of Procedure of the General Court must, therefore, be rejected. 88 In that context, it should be pointed out that, in the present case, as is apparent from paragraph 69 above, on the date on which the order under appeal was signed, the form of order sought before the General Court, in the context of the action for annulment brought before that court by Mr Mazepin, covered the measures at issue. 89 First, 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 measures at issue and, in particular, as not implementing the latter measures (see, to that effect, order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 85). 90 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 measures at issue, with the result that they are not capable of rendering definitive the effects of those measures (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 86). 91 It follows that the measure ordered in point 1 of the operative part of the order under appeal has no direct link to the subject matter of the action for annulment brought by Mr Mazepin before the General Court. 92 The fact that the Council stated its intention to ‘maintain’ Mr Mazepin on the lists of persons subject to restrictive measures is, in that context, irrelevant, in so far as it is not such as to alter the objective relationships between the measures that may be adopted by the Council in the context of the process of ‘re-listing’ at issue in the present case and the measures at issue. 93 In the absence of a direct link between the measure ordered in point 1 of the operative part of the order under appeal and the subject matter of the action for annulment brought by Mr Mazepin before the General Court, 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 9 and 11 of the present order, since, by those earlier 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 point 1 of the operative part of the order under appeal could not validly be adopted under Article 279 TFEU. 94 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 the operative part of that order. 95 The fact that, as noted in paragraph 83 above, Mr Mazepin submitted to the General Court, after the date of signature of the order under appeal, 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 acts adopted by the Council, acts which are not directly targeted by the measures set out in the operative part of the order under appeal. 96 It follows that the second ground of appeal must be upheld and that it is appropriate, without the need to rule on the first, third, fourth and sixth grounds of appeal, to set aside points 1 to 4 and 6 of the operative part of the order under appeal, in so far as points 4 and 6 of that operative part are not severable from points 1 to 3 thereof. The application for interim measures brought before the General Court 97 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). 98 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. 99 In those circumstances, it is apparent 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 100 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 of Justice hereby orders: 1. Points 1 to 4 and 6 of the operative part of the order of the President of the General Court of the European Union of 19 September 2023, Mazepin v Council (T‑743/22 R III) are set aside. 2. The case is referred back to the General Court of the European Union. 3. The costs are reserved. Luxembourg, 22 November 2023. A. Calot Escobar L. Bay Larsen Registrar Vice-President * Language of the case: English.