ORDER OF THE GENERAL COURT (First Chamber)
22 May 2025 (*)
( Action for annulment – Common foreign and security policy – Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine – Prohibition for any non-Russian-registered aircraft which is owned or chartered, or otherwise controlled by any Russian natural or legal person, entity or body, to land in, take off from or overfly the territory of the Union – Articles 3d and 12 of Regulation (EU) No 833/2014 – Act not amenable to review – Inadmissibility )
In Case T‑213/24,
Cortex Havacilik ve Turizm Ticaret AŞ, established in Kepez (Türkiye), represented by R. Antonini, E. Monard, B. Maniatis and E. Zachari, lawyers,
applicant,
v
European Commission, represented by M. Bruti Liberati, M. Carpus‑Carcea and B. Sasinowska, acting as Agents,
defendant,
THE GENERAL COURT (First Chamber),
composed of R. Mastroianni (Rapporteur), President, T. Tóth and S.L. Kalėda, Judges,
Registrar: V. Di Bucci,
Having regard to the order of 6 August 2024, Cortex Havacilik ve Turizm Ticaret v Commission (T‑213/24 R, not published, EU:T:2024:518),
having regard to the written part of the procedure, in particular:
–        the plea of inadmissibility raised by the Commission by separate document lodged at the Registry of the General Court on 3 July 2024;
–        the applications to intervene of the Federal Republic of Germany and the Republic of Poland lodged at the Court Registry on 12 July and 1 August 2024, respectively;
–        the applicant’s observations on the plea of inadmissibility, lodged at the Court Registry on 16 August 2024,
makes the following
Order
1        By its action based on Article 263 TFEU, the applicant, Cortex Havacilik ve Turizm Ticaret AŞ, seeks annulment of the decision contained in the email of the European Commission of 29 March 2024 which,
it is claimed, prohibited the aircraft that it operates from landing in, taking off from or overflying the territory of the Union pursuant to Articles 3d and 12 of Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1), as amended (‘the contested act’).
Background to the dispute and events subsequent to the bringing of the action
2        The present case arises in the context of restrictive measures adopted by the European Union in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
3        The applicant, which operates under the name Southwind Airlines (‘Southwind’), is a company incorporated under Turkish law which has provided passenger air transport services between Türkiye and certain Member States of the European Union since September 2022.
4        On 25 February 2022, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision (CFSP) 2022/327 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 48, p. 1) and, on the basis of Article 215 TFEU, Regulation (EU) 2022/328 amending Regulation No 833/2014 (OJ 2022 L 49, p. 1), in order to prohibit, inter alia, the provision of technical assistance and other services related to goods and technology suited for use in the aviation sector, directly or indirectly, to any natural or legal person, entity or body in Russia or for use in Russia.
5        On 28 February 2022, in the context of new restrictive measures concerning, inter alia, the closure of EU airspace to certain categories of aircraft, the Council adopted, on the basis of Article 29 TEU, Decision (CFSP) 2022/335 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 57, p. 4) and, on the basis of Article 215 TFEU, Regulation (EU) 2022/334 amending Regulation No 833/2014 (OJ 2022 L 57, p. 1).
6        Article 3d of Regulation No 833/2014, as added by Article 1(2) of Regulation 2022/334, and subsequently amended by Article 1(5) of Council Regulation (EU) 2023/427 of 25 February 2023 (OJ 2023 L 59I, p. 6) and by Article 1(8) of Council Regulation (EU) 2023/1214 of 23 June 2023 (OJ 2023 L 159I, p. 1), is, in the version applicable in the present case, worded as follows:
‘1.      It shall be prohibited for any aircraft operated by Russian air carriers, including as a marketing carrier in code-sharing or blocked-space arrangements, or for any [Russian-registered] aircraft, or for any non-Russian-registered aircraft which is owned or chartered, or otherwise controlled by any Russian natural or legal person, entity or body, to land in, take off from or overfly the territory of the Union.
2.      Paragraph 1 shall not apply in the case of an emergency landing or an emergency overflight.
3.      By way of derogation from paragraph 1, the competent authorities may authorise an aircraft to land in, take off from, or overfly, the territory of the Union if the competent authorities have determined that such landing, take-off or overflight is required for humanitarian purposes or for any other purpose consistent with the objectives of this Regulation.
4.      The Member State or Member States concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 3 within two weeks of the authorisation.
5.      Aircraft operators of non-scheduled flights between Russia and the Union, operated directly or via a third country, shall notify prior to their operation, and at least 48 hours in advance, all relevant information concerning the flight to the competent authorities of the Members State of departure or destination.
6.      Upon refusal of a flight notified in accordance with paragraph 5, the Member State concerned shall immediately inform the other Member States, the Network Manager and the Commission.’
7        Article 3e of Regulation No 833/2014, as added by Article 1(2) of Regulation 2022/334, and subsequently amended by Article 1(7) of Council Regulation (EU) 2022/428 of 15 March 2022 (OJ 2022 L 87I, p. 13), is, in the version applicable in the present case, worded as follows:
‘1.      The Network Manager for air traffic management network functions of the single European sky shall support the Commission and the Member States in ensuring the implementation of, and compliance with, Article 3d. The Network Manager shall, in particular, reject all flight plans filed by aircraft operators indicating an intent to carry out activities over the territory of the Union that constitute a violation of this Regulation, such that the pilot is not permitted to fly.
2.      The Network Manager shall regularly supply to the Commission and the Member States, based on the analysis of flight plans, reports on the implementation of Article 3d.’
8        Article 12 of Regulation No 833/2014, as amended by Article 1(12) of Regulation 2022/428, is worded as follows:
‘It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent prohibitions in this Regulation.’
9        It is apparent from Article 6(6) of Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the Single European Sky (the airspace Regulation) (OJ 2004 L 96, p. 20), as amended by Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 21 October 2009 amending Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004 and (EC) No 552/2004 in order to improve the performance and sustainability of the European aviation system (OJ 2009 L 300, p. 34), that the Member States entrust to the European Organisation for the Safety of Air Navigation (Eurocontrol) – which is a regionally oriented international organisation in the field of air traffic – or to another impartial and competent body, the responsibility for the management of air traffic flows, subject to the establishment of appropriate control mechanisms. By Commission Implementing Decision (EU) 2019/709 of 6 May 2019 on the appointment of the network manager for air traffic management (ATM) network functions of the single European sky (OJ 2019 L 120, p. 27), Eurocontrol was reappointed as network manager for the period from 2020 to 2029. Under Article 2(1) of Implementing Decision 2019/709, Eurocontrol ‘shall perform the tasks necessary for the execution of the ATM network functions referred to in Article 7 of [Commission] Implementing Regulation (EU) 2019/123 [of 24 January 2019 laying down detailed rules for the implementation of air traffic management (ATM) network functions and repealing Commission Regulation (EU) No 677/2011 (OJ 2019 L 28, p. 1)]’. Among those tasks, Article 7(1)(d) of Implementing Regulation 2019/123 entrusts the network manager with the task of ‘coordinat[ing] the air traffic flow and capacity management’ which, operationally, includes an automated flight plan monitoring procedure which is carried out by Eurocontrol’s integrated initial flight plan processing system. Under the third subparagraph of Article 6(2) of Regulation No 551/2004, as amended, in the version applicable in the present case, those tasks are to be performed on behalf of Member States and stakeholders.
10      By email of 25 March 2024, the Finnish aviation authorities (‘the Finnish authorities’) informed the applicant that they could not grant it traffic rights to Finland, on the ground that they had doubts concerning the ownership and control of Southwind in respect of
Article 3(4) of the Air Transport Agreement between the Government of the Republic of Finland and the Government of the Republic of Turkey, signed in Ankara on 25 March 1975. In a press release also issued on 25 March 2024, the Finnish authorities stated that the reason for the refusal to grant traffic rights was the fact that that airline was controlled by Russian shareholders and that it was banned from flying under Regulation No 833/2014.
11      By email of 27 March 2024, sent to the functional mailbox for Member States’ contacts for restrictive measures in the aviation sector managed by the Commission’s Directorate-General (DG) for Mobility and Transport (‘the functional mailbox’), the Finnish authorities informed the Commission that, according to their assessment, Southwind was controlled by Russian shareholders and was used to circumvent the sanctions and they asked the Commission to add that airline to the flight ban list.
12      By email of 28 March 2024, the German aviation authorities (‘the German authorities’) notified the applicant that they had been informed by the Commission that Southwind was subject to a prohibition on landing, take-off and overflight under Article 3d of Regulation No 833/2014, in the version applicable in the present case.
13      On the same day, the applicant sent an email to the functional mailbox, in which it challenged the Commission’s decision to ban Southwind flights and, inter alia, requested that that decision be suspended, at least for the following two weeks, stating that it was available to provide further explanations concerning the ownership and control of that airline.
14      On 29 March 2024, Eurocontrol encoded an automated rejection message in its integrated initial flight plan processing system for any flight plan submitted by
Southwind.
15      On 29 March 2024, by email sent to the applicant via the functional mailbox, in response to its email of 28 March 2024, a staff member
of the Commission’s DG Mobility and Transport stated that the ban on flights in EU airspace imposed on Southwind aircraft had been implemented on the basis of Articles 3d and 12 of Regulation No 833/2014, as amended. That email also specified, first, that the applicant’s activities had been inspected by several Member States with the support of the Commission for the collection of data and, second, that the Finnish authorities had already rejected the applicant’s application on the ground that they had considered Southwind to be under Russian control and used to circumvent the sanctions at issue. In addition, it was stated that, while such decisions are taken by the Member States, work is coordinated at EU level and flight bans are implemented centrally and that, after reviewing the facts, there was no reason to doubt the conclusions as regards the effective control of Southwind.
16      By email of the same day, the European Union Aviation Safety Agency (EASA) notified the applicant that it had been informed by the Commission that its aircraft were subject to restrictive measures under Article 3d of Regulation No 833/2014, in the version applicable in the present case, and that, consequently, it had removed them, with immediate effect, from the list of aircraft the use of which was authorised in the territories of the European Union as a third-country operator (‘TCO’).
17      On 4 April 2024, the applicant sent observations to the functional mailbox explaining its position with regard to the flight ban imposed on Southwind.
18      By emails of 5 and 12 April 2024, a staff member of the Commission’s DG Mobility and Transport, first, informed the applicant that its observations would be forwarded to the national authorities concerned and, next, stated that he was not in a position to foresee the response times since the question did not fall exclusively within the Commission’s remit, but involved several Member States.
19      By letter of 17 September 2024, the applicant added to the file a judgment of 4 September 2024 delivered by the Verwaltungsgericht Berlin (Administrative Court, Berlin, Germany) pursuant to an action which it had brought against the flight ban imposed by the German authorities. On 11 October 2024, the Commission submitted its observations on that judgment.
Forms of order sought
20      The applicant claims that the Court should:
–        annul the contested act;
–        order the Commission to bear the costs of the proceedings.
21      In its plea of inadmissibility, raised under Article 130(1) of the Rules of Procedure of the General Court, the Commission contends that the Court should:
–        dismiss the action as manifestly inadmissible;
–        order the applicant to pay the costs.
22      In its observations on the plea of inadmissibility, the applicant claims that the Court should reject the plea of inadmissibility raised by the Commission.
Law
23      Under Article 130(1) and (7) of the Rules of Procedure, on application by the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, since the Commission has applied for a ruling on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.
24      The Commission contends that the present action is inadmissible on the ground that the contested act does not constitute an act against which an action for annulment may be brought, in so far as it does not produce binding legal effects with regard to the applicant and was not adopted on any legitimate legal basis.
25      First, the Commission submits that the contested act does not produce binding legal effects modifying the applicant’s legal position, since such effects follow from the decision of the Member States to implement the flight ban laid down in Article 3d of Regulation No 833/2014, in the version applicable in the present case. The Commission services merely gather information and disseminate the list of aircraft concerned on the basis of the decisions of the competent national authorities.
26      Second, the Commission submits that the alleged effects of the contested act, namely the flight ban imposed on Southwind, are not attributable to it, since only the Member States have the power to impose a ban on flights on the aircraft referred to in Article 3d of Regulation No 833/2014, in the version applicable in the present case. Furthermore, only EASA has the power to remove TCO authorisations under Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 (OJ 2018 L 212, p. 1).
27      In its observations on the plea of inadmissibility, the applicant submits, in the first place, that it is apparent from the evidence which it produced that it was the Commission which adopted an EU-wide flight ban against Southwind, exceeding its role, which consists merely in gathering information and disseminating a list of flight bans on the basis of decisions of the competent national authorities. In particular, first, since the Commission was convinced that Southwind was most likely owned or controlled by Russian interests, it actively and autonomously conducted its own investigation into that company, requesting the competent authorities of various Member States, in particular the German authorities, to conduct further investigations and provide it with more information. Therefore, it was in such a context that the German authorities opened an investigation into Southwind, following which they found that there was no evidence to support the Commission’s assumptions that Southwind was owned or controlled by Russian natural or legal persons and, as a result, they concluded that there was insufficient evidence to justify an EU-wide flight ban. Accordingly, they approved Southwind’s 2024 flight schedule. Second, despite the findings of the German authorities, the Commission continued to investigate and stated that it was preparing to defend its own assessment before the courts. Moreover, the German authorities stated on several occasions that they had acted pursuant to binding decisions taken by the Commission and instructions received from it; as such, the Commission was ultimately responsible for imposing the flight ban on Southwind. Those authorities also invited the applicant to contact the Commission in order to obtain further information on the flight ban imposed and to present its observations. Third, the Commission wrongly relied on the decision of the Finnish authorities rejecting Southwind’s request to operate scheduled flights between Türkiye and Finland. On the one hand, the reasons justifying the rejection of that request given by those authorities were contradictory since the authorities relied, in their various communications, on both Article 3(4) of the bilateral air services agreement between the Republic of Finland and the Republic of Türkiye, referred to in paragraph 10 above, and Article 3d of Regulation No 833/2014, in the version applicable in the present case, and, on the other hand, those authorities did not have any tangible evidence. Fourth, it is apparent from the file that the Commission took a series of measures with the aim of giving concrete expression to the flight ban, in particular with regard to EASA and Eurocontrol, which took the view that the basis for the flight ban was the communication received from the functional mailbox.
28      In the second place, the applicant submits that the Commission’s decision to adopt a flight ban against Southwind, at EU level, is an act which has produced binding legal effects on Southwind and is therefore challengeable under Article 263 TFEU. First, the content of the Commission’s communications leaves no doubt that the Commission adopted an EU-wide flight ban against the applicant, given that, in the email of 29 March 2024 (see paragraph 15 above), it informed it that it had reviewed the facts and that that ban had been implemented centrally. Therefore, the Commission did not merely support the competent national authorities, in this case the German authorities, in implementing Article 3d of Regulation No 883/2014, in the version applicable in the present case, but spearheaded an independent investigation and rejected the findings of the German authorities, which led them to consider the Commission’s decision to be binding and, accordingly, to impose a flight ban on Southwind. Second, a letter sent by the Commission to a Member State informing it that an airline is subject to a flight ban is, according to the applicant, by definition an act aimed at producing binding legal effects vis-à-vis that State and the individual concerned with immediate effect. Furthermore, the fact that the Commission’s objective was to impose a binding flight ban on Southwind is also apparent from its correspondence seeking to obtain written evidence that could be used before the courts.
29      As regards the Commission’s argument that the flight ban is not based on a legitimate legal basis, the applicant replies that the fact that the Commission lacks the competence to adopt an act does not mean that that act is shielded from review under Article 263 TFEU.
30      In that regard, it notes that, in the case which gave rise to the order of 29 April 2024, Global 8 Airlines v Commission (T‑277/23, not published, under appeal, EU:T:2024:285), on which the Commission relies in order to raise the plea alleging that the present action is inadmissible, the circumstances were different to those of the present case. In that case, the applicant challenged only the Commission’s decision by which two light business jets were added to the list of banned aircraft. Contrary to the present case, in the case which gave rise to that order, the applicant did not claim that, by imposing an EU-wide flight ban on it, the Commission had exceeded the limits of the role conferred on it by Regulation No 833/2014, but rather that the Commission had set up a mechanism for the establishment of the list of aircraft referred to in
Article 3d of Regulation No 833/2014, in the version applicable in the present case, that was de facto binding on the Member States and Eurocontrol, without, however, providing any evidence in support of its arguments. In that order, the Court clearly stated that the Commission was not empowered to impose a flight ban on aircraft or to adopt a decision rejecting flight plans. It follows that, if the Commission were to exceed the limits of its role as mere information gatherer and distributor, as is allegedly the case here, and adopt decisions with binding legal effects vis-à-vis an airline, that would amount to ‘acts’ that can be subject to judicial review through an action for annulment. In the present case, by imposing an EU-wide ban on Southwind, the Commission exceeded the limits of its competence and the imposition of such a ban constitutes an act which may be annulled.
31      The applicant also claims that it brought an action before the Verwaltungsgericht Berlin (Administrative Court, Berlin) and that the Federal Ministry of Digital Affairs, Economy and Transport, the defendant in that case, also raised a plea of inadmissibility. Consequently, the applicant submits that it is deprived of effective judicial review and asks the Court, in the event that the present action is held to be inadmissible, to leave no doubt as to the German courts’ jurisdiction to review the legality of the flight ban imposed on it.
32      Under the first paragraph of Article 263 TFEU, the Court of Justice of the European Union is to review the legality, inter alia, of acts of the Commission other than recommendations and opinions. Under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
33      According to settled case-law, an action for annulment is available in the case of all measures adopted by the institutions, bodies, offices or agencies of the European Union, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his or her legal position (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51; and of 19 December 2012, Commission v Planet, C‑314/11 P, EU:C:2012:823, paragraph 94).
34      It is apparent from the case-law that, in order to determine whether an act produces legal effects, it is necessary to look, in particular, to the substance of that act, as well as the intention of those who drafted it (judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42); it is also necessary to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted it (see judgment of 22 April 2021, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission, C‑572/18 P, EU:C:2021:317, paragraph 48 and the case-law cited).
35      In the present case, the application for annulment concerns an alleged decision by the Commission which was brought to the applicant’s attention by the email sent to it on 29 March 2024 via the functional mailbox (see paragraph 15 above). It is therefore necessary to examine whether that act, in the light of its content, the factual and legal context of which it forms part and the intention and powers of the Commission, may be classified as a decision adversely affecting the applicant.
36      It must be noted that, by that email, the Commission’s DG Mobility and Transport notified the applicant of the implementation of the EU-wide flight ban imposed on Southwind aircraft pursuant to, inter alia, Article 3d of Regulation No 833/2014, in the version applicable in the present case, informing it that Southwind’s operations had been inspected by several Member States with its support in collecting data. The Commission’s DG Mobility and Transport also reminded the applicant that the Finnish authorities had just rejected its application, since they had rightly considered that Southwind was controlled by Russian natural persons and used to circumvent the sanctions at issue, and that, notwithstanding the fact that decisions on flight bans were ultimately a matter for the Member States, it had been responsible, inter alia, for coordinating work at EU level in order to enable those decisions to be implemented centrally.
37      The applicant submits, in essence, that, by the contested act, the Commission exceeded the limits of its coordinating and supporting role in the collection of data, by assuming prerogatives which it did not have, since it was not empowered, by substituting itself for the Member States, to impose a flight ban on aircraft or to adopt decisions rejecting flight plans.
38      Such an analysis cannot be supported since the legal context of the contested flight ban and the role of the Commission, the Member States, EASA and Eurocontrol in the process leading to that ban preclude the contested act from being classified as an act intended to produce binding legal effects vis-à-vis the applicant, within the meaning of the case-law cited in paragraph 34 above.
39      As a preliminary point, it is necessary to reject the applicant’s argument seeking to draw attention to the differences between the case which gave rise to the order of 29 April 2024, Global 8 Airlines v Commission (T‑277/23, not published, under appeal, EU:T:2024:285), and the present case since, irrespective of the relevance of the arguments raised by the applicants in the present case and that which gave rise to that order, the question which the Court is called upon to resolve in the present case is, in essence, the same as that examined in that order, namely whether a flight ban under Article 3d of Regulation No 833/2014, in the version applicable in the present case, is an ‘act’ of the Commission that may be annulled.
40      In that regard, it should be noted that the provisions contained in Article 3d of Regulation No 833/2014, in the version applicable in the present case, are of general application and must be implemented by the competent national authorities, which, where appropriate, are to adopt individual measures in order to enforce them. Moreover, under Article 8(1) of Regulation No 833/2014, in the version applicable in the present case, the Member States are also to lay down the rules on penalties applicable to infringements of the provisions of that regulation and are to take all measures necessary to ensure that they are implemented (order of 29 April 2024, Global 8 Airlines v Commission, T‑277/23, not published, under appeal, EU:T:2024:285, paragraph 40).
41      Thus, it is for the Member States to ensure the implementation of Article 3d of Regulation No 833/2014, in the version applicable in the present case, inter alia, in the context of flight bans and the processing of flight plans submitted by the aircraft operators concerned (see, to that effect, order of 29 April 2024, Global 8 Airlines v Commission, T‑277/23, not published, under appeal, EU:T:2024:285, paragraph 41).
42      As regards, first of all, the email of 29 March 2024, it should be noted that it does not refer to any decision, whether by the Commission or EASA, or to any provision allowing the Commission to adopt a decision specifically containing a flight ban affecting
Southwind aircraft. Nor does that email refer to the other emails, relied on by the applicant, from the German authorities or EASA, or even to the management portal showing the applicant’s aircraft as no longer having a valid authorisation. By contrast, it refers to the initiative of the Finnish authorities, of which the applicant had already been informed, which was at the root of the information sent by the Commission to the competent authorities.
43      As is apparent from Article 3d of Regulation No 833/2014, in the version applicable in the present case, the Commission is not empowered to impose a flight ban on aircraft to which that article applies. The implementation and enforcement of the EU restrictive measures are the responsibility of the Member States (see paragraph 40 above), with the Commission’s services merely assisting those States, by exercising in particular the role of information gatherer and distributor, and by also establishing the list of aircraft referred to in that article. More specifically, the power to reject the flight plans of individual aircraft operators is vested in the Member States and exercised, on their behalf, by Eurocontrol, in accordance with Article 3e of Regulation No 833/2014, in the version applicable in the present case, and in the light of the relevant information available to it (order of 29 April 2024, Global 8 Airlines v Commission, T‑277/23, not published, under appeal, EU:T:2024:285, paragraph 47).
44      Thus, it should be noted, as the Commission submits, that the contested act does not produce binding legal effects affecting the applicant’s legal situation, since such effects follow from the decision of the competent national authorities which imposed the flight ban laid down in Article 3d of Regulation No 833/2014, in the version applicable in the present case, all the more so since the Commission’s involvement is limited to gathering information on the basis of the decisions of the competent national authorities imposing such a ban (see, to that effect, order of 29 April 2024, Global 8 Airlines v Commission, T‑277/23, not published, under appeal, EU:T:2024:285, paragraph 48).
45      The fact that the email constituting the contested act
was sent in response to an email from the applicant is not sufficient for such a document to be regarded as a decision-making act against which an action for annulment may be brought. Any correspondence, be it by letter or by email, sent by an EU institution in response to a request made by its addressee does not however in itself demonstrate the existence of an act against which an action may be brought pursuant to the fourth paragraph of Article 263 TFEU. That is all the more so where, as in the present case, such correspondence originates from a mere member of staff of the Commission (see order of 29 April 2024, Global 8 Airlines v Commission, T‑277/23, not published, under appeal, EU:T:2024:285, paragraph 51 and the case-law cited).
46      Next, while it is true that, in their email sent to the applicant on 28 March 2024, the German authorities refer to an earlier communication from the Commission, it should nevertheless be noted, as is the case in the correspondence between the Commission’s services and the applicant, that communications sent by those services to the competent authorities of a Member State cannot prove the existence of binding measures taken by the Commission in implementing Regulation No 833/2014, since that task falls to the Member States. The fact that the German authorities stated, in response to the applicant’s emails, that the applicant had to approach the Commission’s DG Mobility and Transport also cannot support the argument that, in the present case, the Commission had the power to adopt a binding act capable of having binding legal effects on the applicant (order of 29 April 2024, Global 8 Airlines v Commission, T‑277/23, not published, under appeal, EU:T:2024:285, paragraph 52).
47      Last, the fact that EASA referred, in its email of 29 March 2024 to the applicant, to the Commission’s communication and to the list of authorised aircraft mentioned in its file management portal concerning the authorisation of TCOs and relating also to Southwind’s aircraft does not mean that the Commission took or was empowered to take a binding decision. As the Commission observes, in view of the legal framework applicable to the processing of TCO applications for authorisation, it is EASA and, in certain cases, the Member States which take the decisions on the validity of TCO authorisations. As noted in paragraph 43 above, the Commission merely assists EASA and the Member States, in particular by performing the role of gatherer and distributor of information included on the list of aircraft referred to in Article 3d of Regulation No 833/2014, in the version applicable in the present case.
48      Thus, none of the emails, nor any of the communications to which the applicant refers, reveal the existence of a binding Commission decision. By the emails in question, the Commission merely informed relevant agencies, third countries, and authorities, as well as the applicant, of the Member States’ decisions and their assessments taken in the context of the implementation of Regulation No 833/2014.
49      In the light, first, of the case-law referred to in paragraph 34 above relating to the content and substance of the contested act and of the Commission’s intention and, second, of the Commission’s powers and the context in which the contested act was adopted, it cannot, therefore, be held that the contested act produces binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position.
50      That finding cannot be called into question by the applicant’s argument that, on several levels and in several respects, the Commission engaged in conduct constituting forms of pressure, whether on EASA or Eurocontrol or on the national authorities concerned, in particular the German authorities, which ultimately considered that they had to ban Southwind flights in order to comply with the Commission’s binding decisions. Even if they were established, the forms of pressure allegedly exerted by the Commission cannot be regarded as constituting a challengeable act under Article 263 TFEU, but could, at most, be taken into account in the context of an action seeking to establish liability on the part of the Commission. The same is true of the argument alleging that the Commission erred in relying on the decision of the Finnish authorities rejecting Southwind’s application to operate scheduled flights between Türkiye and Finland. First, it should be noted that, even if the Commission had erred in relying on that decision, such a question relates to the merits of a decision allegedly adopted by the Commission and not to its existence. Second, contrary to the applicant’s submissions, it must be stated that there is no contradiction in relation to the reasons relied on by the Finnish authorities to justify the rejection of the application, since the fact that the majority shareholding in – and the control of – Southwind are not vested in the Republic of Türkiye or in its nationals, in accordance with Article 3(4) of the bilateral air services agreement between the Republic of Finland and the Republic of Türkiye (see paragraph 10 above), does not mean that that airline is not owned or chartered, or otherwise controlled by any Russian natural or legal person, entity or body, as laid down in Article 3d of Regulation No 833/2014, in the version applicable in the present case.
51      Furthermore, since it is for the Member States to ensure the implementation of Article 3d of Regulation No 833/2014, in the version applicable in the present case, it is also for the Member States, in accordance with the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in that field.
52      In that connection, as regards the judgment of the Verwaltungsgericht Berlin (Administrative Court, Berlin) of 4 September 2024 and the applicant’s accompanying letter of 17 September 2024, placed on the case file on that same day, it should be noted that that judgment was delivered in the context of an administrative procedure initiated by the applicant before the German authorities, by which it sought the annulment of an email, which had been sent to it on 28 March 2024 by an official of the German Federal Ministry of Digital Affairs, Economy and Transport informing it that it was subject to a take-off, overflight and landing ban under Article 3d of Regulation No 833/2014, in the version applicable in the present case.
53      As regards, first of all, the applicant’s argument that that email shows that the Commission acted ultra vires and that it instructed the Member States concerned to introduce that ban, it should be noted, as recalled in paragraph 43 above, that it is apparent from Article 3d of Regulation No 833/2014, in the version applicable in the present case, that the Commission is not competent to impose a flight ban on aircraft to which that article applies. The implementation and enforcement of the restrictive measures at issue are the responsibility of the Member States (see paragraph 40 above), and the Commission’s services merely assist those States, by exercising in particular the role of information gatherer and distributor.
54      As has already been stated in paragraph 48 above, the Commission merely shared certain information with the German authorities on which they subsequently relied in order to adopt the measure at issue. In those circumstances, it cannot be considered that the Commission acted ultra vires by forcing the Member States to impose such a ban. Moreover, the Commission, once informed by the Finnish authorities of the risk that Southwind would circumvent the sanctions, acted, in accordance with Article 6(1)(d) of Regulation No 833/2014, as amended, which requires the Member States and the Commission to inform each other of the measures taken under that regulation and to share any other relevant information in their possession in connection therewith, in particular information in respect of detected instances of breach, circumvention and attempts at breach or circumvention of the prohibitions set out therein.
55      So far as concerns, next, the requests made by the applicant in its accompanying letter of 17 September 2024, seeking, in essence, first, confirmation from the General Court that only the competent authorities of the Member States can adopt such a ban affecting their own territory and, second, clarification as to who is responsible for, and who must guarantee, legal protection and as to the role of Eurocontrol in such bans, it must be recalled that, when exercising judicial review of legality under Article 263 TFEU, the Court does not have jurisdiction to deliver declaratory judgments (see order of 3 December 2019, WB v Commission, C‑271/19 P, not published, EU:C:2019:1037, paragraph 21 and the case-law cited, and judgment of 20 December 2023, Islentyeva v Council, T‑233/22, EU:T:2023:828, paragraph 15 and the case-law cited). It follows from the foregoing that those requests, even if they could be regarded as constituting heads of claim, are in the present case intended to seek a declaratory judgment and should therefore be dismissed since they are brought before a court which has no jurisdiction to hear them.
56      In the light of all of the foregoing considerations, it must be found that the contested act does not constitute an act against which an action for annulment may be brought under Article 263 TFEU.
57      Accordingly, the plea of inadmissibility raised by the Commission must be upheld and, consequently, the action must be dismissed as inadmissible.
Applications to intervene
58      In accordance with Article 144(3) of the Rules of Procedure, where the defendant has lodged a plea of inadmissibility or of lack of competence as provided for in Article 130(1) of those rules, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved. Furthermore, in accordance with Article 142(2) of those rules, the intervention is to become devoid of purpose, inter alia, where the application is declared inadmissible.
59      Since the plea of inadmissibility raised by the Commission has been upheld in the present case and the present order therefore closes the proceedings, there is no longer any need to adjudicate on the applications to intervene of the Federal Republic of Germany and the Republic of Poland.
Costs
60      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. As the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission, including the costs of the proceedings for interim measures.
61      Under Article 144(10) of the Rules of Procedure,
if the main proceedings have been concluded before the application to intervene has been decided, the applicant for leave to intervene and the main parties are each to bear their own costs relating to their
respective application to intervene. Since there were no observations on the applications to intervene of the Federal Republic of Germany and
the Republic of Poland, the applicant and the Commission have not incurred any costs in that regard.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      There is no longer any need to adjudicate on the applications to intervene of the Federal Republic of Germany and the Republic of Poland.
3.      Cortex Havacilik ve Turizm Ticaret AŞ shall bear its own costs and pay those incurred by the European Commission, including those relating to the proceedings for interim relief.
4.      The Federal Republic of Germany and the Republic of Poland shall bear their own costs relating to their respective application to intervene.
Luxembourg, 22 May 2025.
V. Di Bucci
R. Mastroianni
Registrar
President
*      Language of the case: English.