Order — ECLI:EU:T:2013:395
Date: 2013-08-29
Language of the case: English
Court formation: President of the Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Application for interim measures - inadmissible

summary, given the urgent nature of proceedings for interim relief (see, to that effect, orders of the President of the Court of Justice in Case C‑329/99 P(R) Pfizer Animal Health v Council [1999] ECR I‑8343, paragraph 89, and Case C‑300/00 P(R) Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2000] ECR I‑8797, paragraphs 34 and 35). 27 Thus, in the context of proceedings for interim relief, the admissibility of the main action may be assessed prima facie only and the judge hearing an application for interim measures must not declare an application for interim relief inadmissible unless the admissibility of the corresponding main action may be entirely excluded. Adjudicating on the admissibility of the main action at the interim proceedings stage when that admissibility is not prima facie entirely excluded would amount to prejudging the decision of the Court in the main proceedings (see, to that effect, order of the President of the Court of 8 April 2008 in Joined Cases T‑54/08 R, T‑87/08 R, T‑88/08 R and T‑91/08 R to T‑93/08 R Cyprus v Commission, not published in the ECR, paragraph 51 and the case-law cited). 28 In the present case, the request for operation of Article 1(5) of Regulation No 1263/2012 to be suspended, in so far as it sets 15 April 2013 as the deadline for performance of the work necessary for the applicant’s construction project, is based, not on the principal head of claim seeking annulment of the contested measures, but on the plea of illegality made against Article 1(5) of Regulation No 1263/2012, which was put forward in the reply lodged in the main proceedings. 29 In that context, there is no reason why the case-law relating to the examination, by the judge hearing an application for interim measures, of the admissibility of the main action cannot also be applied to a plea of illegality – which must be a plea raised in the context of the main action (see, to that effect, Case 188/88 NMB v Commission [1992] ECR I‑1689, paragraph 25, and Joined Cases T‑6/92 and T‑52/92 Reinarz v Commission [1992] ECR II‑1047, paragraph 54) –, where the application for interim measures relates to that plea. 30 As the Council rightly states, the plea of illegality raised by the applicant must be declared clearly inadmissible. 31 In the first place, the plea of illegality at issue was not raised until the stage of the reply, whereas Regulation No 1263/2012, against which it is directed, had already been published at the date the main action was lodged. The plea of illegality raised against that regulation is therefore not based on matters of law and fact which have come to light in the course of the main proceedings and nothing indicates that the applicant was prevented from raising that plea in the main application. Moreover, although the applicant, in its main application, made some allusions to the disturbance to its current contractual relationships caused by the contested measures, those references do not go beyond the limits of the pleas raised in support of the head of claim seeking the annulment of the contested measures alone. The plea of illegality cannot therefore be regarded as expanding upon one of the pleas put forward in that application and as being closely connected therewith. Consequently, and on the basis of a summary analysis, it must, prima facie, be declared to be clearly out of time and inadmissible, in accordance with Article 48(2) of the Rules of Procedure. 32 In the second place, according to settled case-law – which applies also to the new Article 277 TFEU (judgment of 25 April 2013 in Case T‑526/10 Inuit Tapiriit Kanatami and Others v Commission [2013] ECR II-0000, paragraph 24) –, the plea of illegality confers upon any party the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is contested (see, to that effect, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 39 to 41). The scope of a plea of illegality must be confined to what is essential to the resolution of the dispute. There must be a direct legal connection between the contested individual decision and the general measure claimed to be illegal, since Article 277 TFEU is not intended to enable a party to contest the applicability of any measure of general application whatsoever in support of some action or other (Reinarz v Commission, paragraphs 56 and 57; Case T‑146/96 De Abreu v Court of Justice [1998] ECR‑SC I‑A‑109 and II‑281, paragraphs 24 and 26; Case 21/64 Macchiorlati Dalmas e Figli v High Authority [1965] ECR 175, at pp. 187 and 188; Case 32/65 Italy v Council and Commission [1966] ECR 389, at p. 409). In the present case, the measures contested in the main proceedings, since they concern only the abovementioned ‘personalised device’, are based neither on Article 1(5) of Regulation No 1263/2012, nor on Article 10 of Regulation No 267/2012. Thus, the plea of illegality is directed against provisions which are not relevant to the resolution of the dispute in the main proceedings and have no direct legal connection therewith. Accordingly, it must, for that reason also, be rejected as clearly inadmissible. 33 In the third place, it is settled case-law that the admissibility of a plea of illegality depends upon whether the party was not entitled under Article 263 TFEU to bring a direct action against the previous act of the institutions which forms the legal basis of the individual decision challenged, by which it was thus affected without having been in a position to ask that they be declared void (see, to that effect, Simmenthal v Commission, paragraph 39, and Case 262/80 Andersen and Others v Parliament [1984] ECR 195, paragraph 6). In the present case, it seems, prima facie, clear that the applicant, as a party to the five contracts in question, was directly and individually concerned, for the purposes of the fourth paragraph of Article 263 TFEU, by Article 1(5) of Regulation No 1263/2012, in that it fixes 15 April 2013 as the deadline provided for in Article 10 of Regulation No 267/2012 for the execution of contracts. 34 First, fixing a specific deadline for the performance of contracts in hand directly affects the legal situation of each party to the contract and leaves no discretion to the authorities responsible for monitoring compliance with the provision in question, that monitoring being purely automatic and resulting from European Union rules alone without the application of other intermediate rules (see, to that effect and by analogy, order of 9 January 2007 in Case T‑127/05 Lootus Teine Osaühing v Council, not published in the ECR, paragraph 39 and the case-law cited). 35 Secondly, as a party to the five contracts in question, the applicant is individually concerned, since the regulation fixing the deadline for the performance of the contracts affects it as a member of a limited class of traders who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group (Case 11/82 Piraiki‑Patraiki and Others v Commission [1985] ECR 207, paragraph 31, and Joined Cases C-182/03 and C-217/03, Belgium and Forum 187 v Commission [2006] ECR I-5479, paragraph 60). In Piraiki-Patraiki and Others v Commission, inter alia, the Court of Justice accepted the admissibility of an action for annulment brought against a measure imposing restrictions on the importation of a product, brought by applicants which, before the adoption of that measure, had concluded contracts of sale of the product concerned, the performance of which was prevented entirely or in part by that measure. In the present case, the legislative provision at issue specifically prevents performance of the contracts in question, to which the applicant is a party and whose execution falls within the period of application of that provision, which, prima facie, gives rise to an application of the case-law established by that judgment. 36 Since the applicant had been entitled to bring, in good time, an action for annulment of the legislative provision against which it made the contested plea of illegality, that plea must, for that reason also, be declared clearly inadmissible. 37 Lastly, even if the plea of illegality made against Article 1(5) of Regulation No 1263/2012 were not inadmissible, it is likely, in any event, to be judged irrelevant, since the applicant’s ultimate goal, namely to be able to perform its contracts in progress after 15 April 2013 without any time-limit, could not be achieved. It must be pointed out that the applicant failed to contest the legality of the provision parallel to Article 1(5), namely, Article 4b of Decision 2010/413, as amended by Decision 2012/635, according to which the contracts concluded by the applicant would avoid the commercial embargo referred to in Article 4 of Decision 2010/413 only in so far as they were performed ‘until 15 April 2013’ (see paragraph 10 above). It follows that making a single plea of illegality against Article 1(5) of Regulation No 1263/2012 alone, without challenging Article 4b of Decision 2010/413 too, as amended by Decision 2012/635, is clearly of no legal utility to the applicant. 38 It follows from all the foregoing that the present application for interim measures must be declared inadmissible, given that the plea of illegality raised in the context of the main action, on which it is based, appears, prima facie, clearly inadmissible. On those grounds, THE PRESIDENT OF THE GENERAL COURT hereby orders: 1. The application for interim measures is rejected. 2. 3. The costs are reserved. Luxembourg, 29 August 2013. E. Coulon M. Jaeger Registrar President * Language of the case: English.