ORDER OF THE GENERAL COURT (Fourth Chamber)
6 December 2023 (*)
(Action for annulment – Common foreign and security policy – Restrictive measures taken having regard to the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine – Prohibition on the purchase, import or transfer of potash from Belarus – Prevention of the transit of potash from Belarus via the territory of Lithuania – Time limit for initiating proceedings – Inadmissibility)
In Case T‑287/23,
Birių Krovinių Terminalas UAB, established in Klaipeda (Lithuania), represented by V. Ostrovskis, lawyer,
applicant,
v
Council of the European Union, represented by A. Boggio-Tomasaz, B. Driessen and A. Antoniadis, acting as Agents, and by E. Raoult, lawyer,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, S. Gervasoni and N. Półtorak (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, Birių Krovinių Terminalas UAB, seeks annulment of, first, Article 2(g)(1) and (1a) of Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), as amended by Council Decision (CFSP) 2023/421 of 24 February 2023 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 61, p. 41), and, secondly, Article 1(i) and Annex VIII to Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1) as allegedly amended by Decision 2023/421, in so far as the relevant restrictions prohibit the transfer of potash from Belarus (‘the contested acts’).
Background to the dispute
2        By adopting Decision 2023/421, the Council of the European Union amended, first, Article 8(1) of Decision 2012/642 providing for the applicability of that decision until 28 February 2024 and, secondly, the list of persons, entities and bodies referred to by the restrictive measures in Annex I. Decision 2023/421 was published in the Official Journal of the European Union on 27 February 2023.
Forms of order sought
3        The applicant claims that the contested acts should be annulled and the Council ordered to pay the costs.
4        The Council contends that the appeal should be dismissed as manifestly inadmissible and the applicant ordered to pay the costs.
Law
5        Under Article 130 of the Rules of Procedure of the General Court, where, as in the present case, the defendant relies on the inadmissibility of the application asking that the General Court make a decision in that regard without going to the substance of the case, the General Court must decide on the application as soon as possible or, where special circumstances so justify, reserve its decision until it rules on the substance of the case.
6        In the present case, the General Court considers that it has sufficient information available to it from the exchanges of pleadings to date and the other material in the file to adjudicate on the application, without taking further steps in the proceedings.
7        In its plea of inadmissibility raised by a separate document, the Council submits that the action must be dismissed as manifestly inadmissible in so far as the application was lodged out of time.
8        In its observations on the plea of inadmissibility, the applicant disputes that argument.
9        Under the sixth paragraph of Article 263 TFEU, proceedings for annulment are to be instituted within two months of the publication of the contested measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Article 59 of the Rules of Procedure provides that where the time limit allowed for initiating proceedings against a measure adopted by an institution runs from the publication of that measure in the Official Journal, that time limit shall be calculated, for the purposes of Article 58(1)(a) of those rules, from the end of the fourteenth day after such publication. In accordance with Article 60 of those rules, that time limit is, in addition, to be extended on account of distance by a single period of 10 days.
10      In the present case, the time limit for initiating proceedings
started to run from the publication of Decision 2023/421 in the Official Journal on 27 February 2023. That time limit is to be calculated, within the meaning of Article 58(1)(a) of the Rules of Procedure, from the end of the fourteenth day after such publication, being
13 March 2023.
11      Accordingly, the time limit for initiating proceedings
expired on 23 May 2023, that is to say, two months after 13 March 2023, extended on account of distance by a single period of 10 days. However, the action was brought on 24 May 2023, namely, after the expiry of the time limit.
12      Consequently, with regard to the applicant’s argument that the time limit of two months provided for in Article 263
TFEU ran, in accordance with the provisions of Articles 58 and 59 of the Rules of Procedure, not from the end of the fourteenth day after publication of the measure in the Official Journal but from the beginning of the fifteenth day after publication, it must be stated that such an argument, which misconstrues the clear wording of Article 59 of the Rules of Procedure, was already expressly rejected by the Court of Justice (see order of 16 October 2023, Grapevine v Commission, C‑139/23 P, not published, EU:C:2023:806, paragraph 34 and the case-law cited). In that regard, it should be noted that Article 59 constitutes a lex specialis in relation to Article 58(1)(a) of the Rules of Procedure.
13      Furthermore, it must be borne in mind that the rules on the time limits applicable in the present case do not give rise to any particular difficulty of interpretation, so that
regarding the commencement of the time limit for
initiating proceedings, it cannot be accepted that this is an excusable error on the part of the applicant, justifying derogation from the strict application of the abovementioned rules (see order of 16 October 2023, Grapevine v Commission, C‑139/23 P, not published, EU:C:2023:806, paragraph 33 and the case-law cited).
14      It follows that the present action is inadmissible.
Costs
15      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Council.
16      Furthermore, pursuant to Article 144(10) of the Rules of Procedure, the Republic of Lithuania shall bear its own costs relating to the application to intervene.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      There is no need to rule on the application to intervene made by the Republic of Lithuania.
3.      Birių Krovinių Terminalas UAB is ordered to pay the costs.
4.      The Republic of Lithuania shall bear its own costs relating to the application to intervene.
Luxembourg, 6 December 2023.
V. Di Bucci
R. da Silva Passos
Registrar
President
*      Language of the case: English.