ORDER OF THE GENERAL COURT (Fourth Chamber)
19 May 2025 (*)
( Action for annulment and for failure to act – Common foreign and security policy – Restrictive measures taken in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine – Prohibition on the purchase, import or transfer of potash products from Belarus – Act not open to challenge – Incorrect designation of the defendant – Statement of position – End of the failure to act – Partial inadmissibility – Application of a declaratory nature – Application for directions to be issued – Partial lack of jurisdiction )
In Case T‑261/24,
Birių Krovinių Terminalas UAB, established in Klaipėda (Lithuania), represented by V. Nikitinas and A. Staševskaja, lawyers,
applicant,
v
Council of the European Union, represented by B. Driessen and L. Berger, acting as Agents,
and
European Commission,
represented by M. Carpus-Carcea and J. Norris, acting as Agents,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos (Rapporteur), President, N. Półtorak and I. Reine, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, in particular the decision of 1 April 2025 to reserve the decision on the plea of inadmissibility and lack of jurisdiction lodged by the Council until a ruling is given on the substance of the case,
makes the following
Order
1        By its action, the applicant, Birių Krovinių Terminalas UAB, seeks, in essence, in the first place, under Article 263 TFEU: (i) the annulment, as regards the interpretation and definition of the term ‘transfer’, of the document of the European Commission, in the version thereof of 22 June 2022, entitled ‘Consolidated FAQs on the implementation of Council Regulation No 833/2014 and Council Regulation No 269/2014’, as amended (‘the contested FAQs’), and of the ‘Guidance of May 2014’ document in so far as it concerns the concept of ‘transfer’ in relation to the concept of ‘transport’ (‘the May 2014 document’); (ii) a declaration by the Court that the Commission misused its powers by allowing and subsequently not withdrawing the interpretation of the term ‘transfer’ set out in those two documents; and (iii) the annulment of 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 amended and supplemented, and of Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), as amended and supplemented, in so far as they are incompatible with the provisions of international agreements and of EU law relating to restrictions on the transit of potassium chloride (potash) fertilisers from Belarus to third countries through the applicant’s port terminal. In the second place, the applicant seeks, under Article 265 TFEU, a declaration by the Court that the Council of the European Union and the Commission unlawfully refrained from taking, at the applicant’s request, any steps to remedy a number of infringements of international agreements and of EU law. In the third place, it asks the Court to order the Council and the Commission to adopt provisions pursuant to which Regulation No 765/2006 and Decision 2012/642 do not apply to the transport by rail of potash products from Belarus through the territory of the European Union, between the Belarusian and Lithuanian borders and the applicant’s port terminal, or to other operations relating to transit to third countries, or to order the Council and the Commission to publish official guidelines or clarification in that regard.
Background to the dispute
2        The applicant is a Lithuanian company specialising, inter alia, in the transshipment of potash products in the port of Klaipėda (Lithuania). Its business mainly involves the transit by rail of potash fertilisers from Belarus through the territory of Lithuania to third countries.
3        The present case arises in the context of the restrictive measures adopted by the European Union since 2004 in view of the situation in Belarus as regards democracy, the rule of law and human rights and the involvement of that State in actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
4        In the light, in particular, of the persistent failure to respect human rights, democracy and the rule of law and the systematic repression of civil society and democratic opposition in Belarus, on 18 May 2006 the Council of the European Union adopted, on the basis of Articles 75 and 215 TFEU, Regulation No 765/2006 imposing individual restrictive measures on President Lukashenko and certain officials of Belarus. In addition, on 15 October 2012 it adopted, on the basis of Article 29 TEU, Decision 2012/642 supplementing that package of measures by, in particular, sectoral restrictive measures with a view to prohibiting the sale, supply, transfer or export to Belarus of arms and related material.
5        In response to the Russian Federation’s illegal annexation, in March 2014, of the Autonomous Republic of Crimea and the city of Sevastopol, on 17 March 2014 the Council adopted, inter alia, on the basis of Article 215 TFEU, Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine
(OJ 2014 L 78, p. 6). Furthermore, on 31 July 2014 it adopted, on the same basis, Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1).
6        In parallel, in May 2014 the Commission drew up and submitted to the Member States and to the Council’s Working Party of Foreign Relations Counsellors (RELEX) the May 2014 document, by which it sought to clarify the term ‘transfer’ when used in relation to ‘transport’.
7        On 24 June 2021, the Council, by Decision (CFSP) 2021/1031 amending Decision 2012/642 (OJ 2021 L 224 I, p. 15) and Regulation (EU) 2021/1030 amending Regulation No 765/2006 (OJ 2021 L 224 I, p. 1), inserted, respectively, Article 2g in that decision and Article 1i in that regulation laying down a prohibition on the purchase, import or transfer of potash products from Belarus.
8        On 22 June 2022 the Commission adopted the contested FAQs, which included, among other things, specific details on the interpretation of the term ‘transfer’ for the purpose of implementing the restrictive measures provided for in Regulations No 269/2014, No 833/2014 and, by analogy, No 765/2006.
9        On 12 September and 30 October 2023, the applicant sent two letters to the Commission calling on it to take the view, first, that the prohibition laid down in Article 1i of Regulation No 765/2006 did not apply to the transit through the territory of Lithuania of potash fertilisers, as a result, it claimed, of the infringement of several international agreements, and, secondly, that the Republic of Lithuania was in breach of its obligations under EU law. In addition, on 29 January 2024, it sent a further letter to the Council calling on it to take steps to clarify the scope of the restrictive measures imposed in respect of Belarusian potash.
10      By letters of 8 and 15 February 2024, the Commission replied to the applicant stating, inter alia, that the sectoral prohibition in dispute included the prohibition on the transit of Belarusian potash products and transport services in relation to such products and that that was not contrary to EU law. By letter of 26 February 2024, the Council replied to the applicant explaining that responsibility for the implementation and interpretation of the restrictive measures lay with the competent national authorities of the Member States and the Commission and that, consequently, specific questions in that regard should be addressed to them.
11      On 26 February 2024, the Council adopted Decision (CFSP) 2024/769 amending Decision 2012/642 (OJ L 2024/769) and Implementing Regulation (EU) 2024/768 implementing Article 8a of Regulation No 765/2006 (OJ L 2024/768), renewing, respectively, Decision 2012/642 and Regulation No 765/2006 until 28 February 2025.
Forms of order sought
12      The applicant claims, in essence, that the Court should:
–        annul the contested FAQs and the May 2014 document as regards the interpretation and definition of the term ‘transfer’;
–        declare that the Commission misused its powers by allowing and subsequently not withdrawing the interpretation of the term ‘transfer’ set out in the contested FAQs and the May 2014 document;
–        annul Regulation No 765/2006, as amended and supplemented, and Decision 2012/642, as amended and supplemented, in so far as they are incompatible with the provisions of international agreements and of EU law concerning restrictions on the transit of potash fertilisers from Belarus to third countries through the applicant’s port terminal;
–        declare that the Council and the Commission unlawfully refrained from taking, at the applicant’s request, any steps to remedy a number of infringements of international agreements and other provisions of EU law;
–        order the Council and the Commission to adopt provisions pursuant to which the restrictive measures provided for in Regulation No 765/2006 and Decision 2012/642 do not apply to the transport by rail of potash products from Belarus through the territory of the European Union, between the Belarusian and Lithuanian borders and the applicant’s port terminal, or to other operations relating to transit to third countries, or to order the Council and the Commission to publish official guidelines or clarification in that regard;
–        order the Council and the Commission to pay the costs.
13      By its plea of inadmissibility and lack of jurisdiction raised under Article 130 of the Rules of Procedure of the General Court, the Commission contends, in essence, that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
14      In its observations on the plea of inadmissibility and lack of jurisdiction raised by the Commission, the applicant claims that the Court should reject that plea or, in the alternative, reserve its decision on it until a ruling is given on the substance of the case.
Law
15      Article 130(1) of the Rules of Procedure provides that the Court may, on the application of the defendant, give a decision on inadmissibility or lack of jurisdiction without going to the substance of the case. Under Article 130(7) of those rules, the Court is to decide on the application as soon as possible or, where special circumstances so justify, reserve, by way of decision, its decision on the application until it rules on the substance of the case.
16      In the present case, the Commission has applied for a decision on the inadmissibility of the action and on the Court’s lack of jurisdiction to hear and determine it. In those circumstances, the Court, taking the view that it has sufficient information from the documents before it, has decided to rule on that application without taking further steps in the proceedings.
The first head of claim in so far as it is directed against the Commission
17      In support of its argument that the first head of claim is inadmissible, the Commission submits, first, that the contested FAQs cannot be classified as a ‘legislative act’ or an ‘act intended to produce legal effects vis-à-vis third parties’. Secondly, as regards the application for annulment of the ‘Guidance of May 2014’ document in so far as it concerns the concept of ‘“transfer” in relation [to] “transport”’, the Commission submits that those terms lack the precision and clarity needed to enable it to identify the alleged document thus referred to. Furthermore, even if that document existed, any action directed against such an act would be out of time, since it dates from May 2014 and the lack of detail in the application makes it impossible to determine when it came to the applicant’s knowledge.
18      In its observations on the plea of inadmissibility and lack of jurisdiction raised by the Commission, the applicant states that those documents were identified and made available via hyperlinks in the footnotes to the application. It produces, as an annex, the May 2014 document. In that regard, the applicant explains, first, that it only became aware of that document on 24 April 2024, with the result that it was unable to grasp its significance, as regards the interpretation of the term ‘transfer’ and the legal consequences thereof, until that date. In those circumstances, its application for annulment of the contested FAQs and the May 2014 document is not out of time. Secondly, it states, in essence, that it is apparent from the minutes of the meeting of the RELEX working party of the Council of 30 July 2014 that there was no unanimity among the Member States as regards the definition of the term ‘transfer’ proposed in the May 2014 document. Lastly, it adds that the imperative nature of the wording used in the document imposes that definition on the persons to whom the document is addressed and that, having regard to their content, the two documents at issue have direct effects on its legal situation.
19      In the first place, concerning the application for annulment of the contested FAQs, it should be recalled that according to settled case-law, any acts adopted by the institutions, whatever their form, which are intended to produce binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position, are regarded as challengeable acts for the purposes of Article 263 TFEU (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51; see also judgment of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 47 and the case-law cited).
20      By contrast, any act not producing binding legal effects capable of affecting the interests of the individual, such as preparatory acts, confirmatory measures and implementing measures, mere recommendations and opinions and, in principle, internal instructions, falls outside the scope of the judicial review provided for in Article 263 TFEU (see judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 55 and the case-law cited, and order of 4 April 2024, Dunaújvárosi Egyetem v Council and Commission, T‑140/23, not published, EU:T:2024:210, paragraph 88 and the case-law cited).
21      In the present case, it should be noted that, by publishing the contested FAQs, the Commission made public a working document drawn up by its services in order to give guidance to national authorities, EU operators and citizens for the implementation and interpretation of Regulations No 833/2014 and No 269/2014. In that regard, it recalls in that document, by way of introduction, that only the Court of Justice of the European Union is competent to interpret EU law and that, against that background, national authorities and economic operators may make use of that guidance, based on the text, context and purpose of those regulations, to achieve the uniform application of restrictive measures across the European Union.
22      It follows that the interpretative explanations contained in the contested FAQs are intended solely to provide the public with factual information and non-binding clarifications about the implementation of Regulations No 833/2014 and No 269/2014 for the purposes of the uniform application of EU law. Accordingly, that guidance document cannot be regarded as being intended to produce binding legal effects – something which, incidentally, the applicant acknowledges – effects that moreover stem from the regulations referred to.
23      It follows that, in the light of the case-law cited in paragraphs 19 and 20 above, the contested FAQs cannot be classified as a challengeable act for the purposes of Article 263 TFEU.
24      In the second place, as regards the May 2014 document, the applicant produced that document as an annex to its observations on the plea of inadmissibility and lack of jurisdiction raised by the Commission and thus succeeded in demonstrating its existence and in specifying its content.
25      In that connection, it should be noted that the May 2014 document thus produced is a working document entitled ‘Commission Non Paper, “Transfer” in relation to “Transport”’. In that document, the Commission sets out, in the light of the observations of the Kingdom of the Netherlands, a legal summary of the interpretation of the term ‘transfer’. In addition, it is apparent, in essence, from the minutes of the meeting of the RELEX working party of the Council of 30 July 2014 that the Commission forwarded that document to the Member States and that working party for the purposes of a comparative study, between that document and the assessments in that regard of some Member States, and with a view to enhancing the uniform enforcement of restrictive measures in the European Union.
26      Against that background, that working document, which is comparable to a preparatory, advisory and analytical opinion, intended solely for the Member States and the Council, cannot produce legal effects affecting the applicant’s interests and therefore does not constitute a challengeable act for the purposes of Article 263 TFEU.
27      Accordingly, in so far as the present action is directed against the Commission, it is inadmissible inasmuch as it seeks the annulment of the contested FAQs and the May 2014 document, there being no acts against which an action for annulment may be brought.
The second head of claim in so far as it is directed against the Commission
28      In support of its plea of inadmissibility and lack of jurisdiction, the Commission submits that the second head of claim is difficult to understand and seeks to obtain a declaratory judgment, with the result that it is inadmissible.
29      In its observations on the plea of inadmissibility and lack of jurisdiction raised by the Commission, the applicant restates its argument that, by unlawfully adopting the contested FAQs and the May 2014 document, the Commission failed to observe the limits of its power of legislative initiative. In the alternative, it links that complaint to the submission of a plea of illegality under Article 277 TFEU.
30      It should be borne in mind that, by its second head of claim, the applicant requests the Court to declare that the Commission misused its powers by unlawfully adopting, under its power of legislative initiative, and subsequently not withdrawing, the interpretation of the term ‘transfer’ set out in the contested FAQs and the May 2014 document, in breach of Article 17(1) and Article 31(1) TEU. In that regard, it must be pointed out that that request is formulated not as a plea put forward in support of the first head of claim, seeking the annulment of the contested FAQs and the May 2014 document, but as a separate and independent head of claim, although also submitted under Article 263 TFEU.
31      Thus, it should be observed that, by that separate head of claim, the applicant is asking the Court to deliver a declaratory judgment finding that the Commission does not have the power to adopt guidance on the interpretation of the regulations relating to restrictive measures.
32      In that regard, suffice it to recall that, when exercising judicial review of legality under Article 263 TFEU, the Court does not have jurisdiction to deliver declaratory or confirmatory judgments (see judgment of 20 December 2023, Islentyeva v Council, T‑233/22, EU:T:2023:828, paragraph 15 and the case-law cited).
33      It follows that in so far as the request made by the applicant under the second head of claim is directed against the Commission, it must be rejected on the ground that the Court does not have jurisdiction to hear and determine it.
34      In any event, while the applicant also appears to rely on Article 277 TFEU in order to request the Court, in the alternative, to declare that the contested FAQs and the May 2014 document are not applicable to it, on account of their allegedly unlawful adoption by the Commission, it must nevertheless be borne in mind that, according to settled case-law, Article 277 TFEU gives expression to the general principle conferring upon any party to proceedings the right to challenge indirectly, in seeking annulment of a decision against which it can bring an action, the validity of a previous act of the institutions which forms the legal basis of the decision which is being challenged, if that party was not entitled under Article 263 TFEU to bring a direct action challenging that act, by which it was thus affected without having been in a position to ask that it be declared void (see judgment of 25 April 2013, Inuit Tapiriit Kanatami and Others v Commission, T‑526/10, EU:T:2013:215, paragraph 24 and the case-law cited). Thus, the possibility afforded by Article 277 TFEU of pleading the illegality of an act of general application does not constitute an independent right of action and may be exercised only indirectly (see orders of 20 November 2012, Shahid Beheshti University v Council, T‑120/12, not published, EU:T:2012:610, paragraph 24 and the case-law cited, and of 20 October 2022, Callaway v Commission, T‑653/21, not published, EU:T:2022:670, paragraph 34 and the case-law cited).
35      In the present case, it cannot be ascertained from the applicant’s arguments which acts should be annulled under Article 263 TFEU on account of the alleged unlawfulness of the contested FAQs and the May 2014 document. Nor does the applicant explain, therefore, to what extent those documents form the legal basis for the acts which it seeks to have annulled. Thus, it must be held that the applicant’s arguments do not meet the requirements of sufficient clarity and precision laid down in Article 76(d) of the Rules of Procedure and must be rejected as inadmissible.
The third head of claim in so far as it is directed against the Commission
36      The Commission contends that the third head of claim is inadmissible as, first, under Article 275 TFEU, the Court does not have jurisdiction to hear and determine the application for annulment of Decision 2012/642. Secondly, the application for annulment of Regulation No 765/2006 is inadmissible, under Article 76(d) and (e) of the Rules of Procedure, in so far as Regulation No 765/2006 has been amended on numerous occasions and, in that respect, the applicant is unable to identify with sufficient precision which provision of that regulation it seeks to have annulled. The Commission adds that those applications are manifestly out of time and that, moreover, the applicant has not explained why it considers itself to have standing to bring proceedings against those acts, particularly as regards a sectoral prohibition of general application.
37      In its observations on the plea of inadmissibility and lack of jurisdiction raised by the Commission, the applicant disputes that line of argument and states that its applications
seek specifically to challenge the restriction on the transit of potash products from Belarus to third countries through its port terminal and that that prohibition is laid down in Article 1i of Regulation No 765/2006 and Article 2g of Decision 2012/642, as reproduced in the application. It claims to have demonstrated that those acts directly and individually affected its legal and economic situation. It argues that, against that background, its action is not out of time, since it was brought within the period of two months and 10 days from the publication, on 27 February 2024, of Regulation 2024/768 and Decision 2024/769. It adds that the successive acts amending Regulation No 765/2006 and Decision 2012/642 had the sole legal effect of amending those initial acts and exhausted that effect on the date of their entry into force, with the result that only those initial acts, as amended, constitute the legal framework governing the prohibition at issue.
38      In that connection, first, Decision 2012/642 was adopted on the basis of Article 29 TEU, which is a provision concerning the common foreign and security policy within the meaning of Article 275 TFEU. Moreover, the prohibition measures laid down by that decision are of a general nature, their scope being determined by reference to objective criteria and not by reference to identified natural or legal persons. Consequently, Article 2g of that decision is not a decision providing for restrictive measures against natural or legal persons within the meaning of the second paragraph of Article 275 TFEU. Accordingly, it must be concluded that, under the first paragraph of Article 275 TFEU, the Court does not have jurisdiction to hear and determine an action seeking to assess the legality of Article 2g of Decision 2012/642.
39      Secondly, as regards Regulation No 765/2006, it should be borne in mind that an action for annulment must be brought against the EU institution, body, office or agency that adopted the act in question (see order of 19 November 2018, Iccrea Banca v Commission and SRB, T‑494/17, EU:T:2018:804, paragraph 19 and the case-law cited; see also, to that effect, judgment of 11 September 2003, Austria v Council, C‑445/00, EU:C:2003:445, paragraph 32 and the case-law cited). Even if the application made by the applicant under the third head of claim could be regarded as admissible, that application seeks the annulment of a regulation adopted by the Council, namely Regulation No 765/2006, as amended and supplemented.
40      Thus, since the institution which adopted Regulation No 765/2006 is not the Commission but the Council, the former cannot be designated as the defendant in the application for annulment of that regulation.
41      In those circumstances, in so far as the third head of claim is directed against the Commission, it must be rejected in part as having been brought before a court lacking in jurisdiction to hear and determine it and in part as inadmissible.
The fourth head of claim in so far as it is directed against the Commission
42      The Commission contends that the fourth head of claim is inadmissible since the application made by the applicant under that head must be rejected as seeking a declaratory judgment. In addition, the Commission submits that neither it nor the Council was legally required to reconsider the interpretation given to the term ‘transfer’ and that, therefore, the argument alleging failure to publish guidelines or to amend the provisions of the existing legislation concerning that concept is misconceived. In those circumstances, the applicant, which has neither identified the obligation to act in question nor described it in sufficient detail, cannot properly rely on the application of Article 265 TFEU.
43      In its observations on the plea of lack of jurisdiction and inadmissibility raised by the Commission, the applicant draws attention to the content of the call to act it made to the Commission, seeking the adoption of guidelines intended for Member States concerning the transit of Belarusian potash, mirroring those adopted concerning the transit of goods from Russia. By not responding to that call to act, the Commission not only failed to act but also misused its powers and expressed a preference in favour of Russian entities in breach of the principle of non-discrimination.
44      It should be recalled, at the outset, that natural and legal persons may bring proceedings before the Courts of the European Union under the third paragraph of Article 265 TFEU only for a declaration that an EU institution, body, office or agency has failed, in breach of the Treaty, to adopt an act, other than a recommendation or an opinion, of which those persons are the potential addressees or which is of direct, or where relevant direct and individual, concern to them and which they could challenge by way of an action for annulment (see, to that effect, orders of 28 February 2013, H-Holding v Commission, C‑235/12 P, not published, EU:C:2013:132, paragraphs 11 and 12; of 17 November 2010, Victoria Sánchez v Parliament and Commission, T‑61/10, not published, EU:T:2010:473, paragraph 28; and of 27 November 2012, H-Holding v Parliament, T‑672/11, not published, EU:T:2012:628, paragraph 16).
45      Moreover, it should be borne in mind that that provision refers to failure to act by the failure of the institution concerned to take a decision or to define its position. Thus, the conditions governing the admissibility of an action for failure to act, laid down in Article 265 TFEU, are not satisfied, in principle, where the institution called upon to act defined its position on that call to act before the action was brought (see order of 17 July 2020, Wagenknecht v European Council, T‑715/19, EU:T:2020:340, paragraph 29 and the case-law cited).
46      In addition, it is apparent from the case-law that Article 265 TFEU refers to failure to act in the sense of failure to take a decision or to define a position, not in the sense of adoption of an act different from that desired or considered necessary by the persons concerned (see order of 17 July 2020, Wagenknecht v European Council, T‑715/19, EU:T:2020:340, paragraph 30 and the case-law cited). Consequently, where, supported by explanations, the institution refuses to act in accordance with such a call to act, that constitutes a definition of position bringing the failure to act to an end and such a refusal, thus expressed in detail, constitutes a challengeable act under Article 263 TFEU (see order of 17 July 2020, Wagenknecht v European Council, T‑715/19, EU:T:2020:340, paragraph 31 and the case-law cited).
47      In the present case, on 12 September and 30 October 2023, the applicant sent the Commission two letters, calling on it to take the view that the unilateral measures taken by the Republic of Lithuania, prohibiting the transit through its territory of potassium fertilisers from Belarus, did not fall within the scope of the prohibition laid down in Article 1i of Regulation No 765/2006 and were also contrary to the principle of the free movement of goods. Furthermore, it stated in those letters that that prohibition on transit infringed a number of international agreements entered into by the Republic of Lithuania prior to its accession to the European Union and that other measures taken at national level went beyond what was necessary to implement the restrictive measures adopted by the European Union. The applicant therefore asked the Commission, first, to examine those complaints and to initiate infringement proceedings against the Republic of Lithuania and, secondly, to adopt specific guidance in order to clarify the application of the restrictive measures at issue and to bring it into line with EU and international law.
48      By letters of 8 and 15 February 2024, the Commission replied to the applicant, stating that, after examining its complaint, it had decided not to initiate infringement proceedings against the Republic of Lithuania as there was no infringement of EU law. In that regard, it explained that the prohibition on the transit of Belarusian potash products and transport services in relation to such products did indeed fall within the scope of the sectoral prohibition at issue; in other words, allowing the transit of Belarusian potash products through the territory of a Member State would constitute a transfer of such products through EU territory, which was prohibited by Article 1i
of Regulation No 765/2006. In addition, it made clear that the prohibition at issue did not prohibit trade between Belarus and non-EU States, as long as it is carried out outside the EU and does not involve individuals or entities subject to EU jurisdiction. It also recalled that Member States were responsible for the implementation and enforcement of restrictive measures and that its role was to monitor that implementation by providing support to Member States.
49      It is apparent from the foregoing that the Commission gave the applicant a detailed explanation of its reasons for considering that it could not act in the manner requested of it. The Commission therefore defined its position, within the meaning of the case-law cited in paragraph 45 above, on the requests made by the applicant in its letters of 12 September and 30 October 2023.
50      Furthermore, it must be borne in mind that, according to the Court of Justice, individuals do not have standing to challenge, by way of an action for annulment, a refusal by the Commission to initiate infringement proceedings against a Member State. First, such a refusal does not amount to a challengeable act for the purposes of Article 263 TFEU since it follows from the scheme of Article 258 TFEU that the Commission is not obliged to bring an action for failure to fulfil obligations, but that it has discretion in that regard which precludes a right on the part of individuals to require that institution to adopt a specific position. Secondly, within the framework of the infringement procedure governed by Article 258 TFEU, the only measures which the Commission may be induced to take are measures addressed to the Member States. In addition, neither the reasoned opinion, which is part of the preliminary stage prior to any action being lodged before the Court of Justice for failure to fulfil obligations, nor referral to the Court of Justice by the actual lodging of such an action can constitute acts of direct concern to natural or legal persons (order of 17 February 2023, Pombo da Silva v Commission, C‑586/22 P, not published, EU:C:2023:125, paragraphs 15 to 17).
51      It follows that the Commission did not fail to take a decision on the call to act made to it by the applicant, a call which, moreover, as regards both the request to initiate infringement proceedings against the Republic of Lithuania and the request for the adoption of specific guidelines, related to acts which were not of direct and individual concern to the applicant and which it could not challenge by way of an action for annulment. In those circumstances, the applicant cannot properly plead, on the basis of Article 265 TFEU, a possible failure to act on the part of that institution. Accordingly, in so far as the fourth head of claim is directed against the Commission, it must be rejected as inadmissible.
The fifth head of claim in so far as it is directed against the Commission
52      The Commission submits that the application made by the applicant under the fifth head of claim is an application for an injunction which, in accordance with the case-law, should be rejected as inadmissible.
53      In its observations on the plea of lack of jurisdiction and inadmissibility, the applicant does not reply to that argument.
54      In the present case, it should be noted, as the Commission does, that such a head of claim, by which the Court is asked to order the Commission to adopt certain provisions, is akin to an application for directions to be issued.
55      It is settled case-law that the Court has no jurisdiction to issue directions to the EU institutions or to the Member States (order of 29 November 1993, Koelman v Commission, T‑56/92, EU:T:1993:105, paragraph 18, and judgment of 9 January 1996, Koelman v Commission, T‑575/93, EU:T:1996:1, paragraph 29; see also order of 6 August 2024, Costache v Germany and Commission, T‑79/24, not published,
EU:T:2024:561, paragraph 14 and the case-law cited).
56      Consequently, that application must be rejected as must, therefore, the fifth head of claim in so far as it is directed against the Commission on the ground that the Court does not have jurisdiction to hear and determine it.
57      It follows that in so far as the action is directed against the Commission, it must be dismissed in part as inadmissible and in part as having been brought before a court lacking in jurisdiction to hear and determine it.
Costs
58      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.
59      Since the applicant has been unsuccessful in so far as the action is directed against the Commission, it must be ordered, to that extent, to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.      In so far as the action is directed against the European Commission, it is dismissed in part as inadmissible and in part as having been brought before a court lacking in jurisdiction to hear and determine it.
2.      Birių Krovinių Terminalas UAB shall pay the costs relating to the action in so far as it is directed against the Commission.
Luxembourg, 19 May 2025.
V. Di Bucci
R. da Silva Passos
Registrar
President
*      Language of the case: English.